As Filed with the Securities and Exchange Commission on June 23, 1999
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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COMCAST CORPORATION
(Exact name of Registrant as specified in its charter)
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Pennsylvania 23-1709202
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(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
See Table of Additional Registrants
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(215) 665-1700
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
John R. Alchin, Senior Vice President and Treasurer
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(215) 665-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of communications to:
Bruce K. Dallas, Esquire
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, as amended (the "Securities Act"), other than securities 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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<TABLE>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of Amount to offering price aggregate offering registration
securities to be registered be registered(1) per unit(2) price(2) fee(3)
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<S> <C> <C> <C> <C>
Senior Debt Securities and Subordinated Debt Securities
(collectively, "Debt Securities").........................
Preferred Stock, without par value............................
Depositary Shares representing Preferred Stock................ $3,000,000,000 100% $3,000,000,000 $834,000
Class A Common Stock, $1.00 par value.........................
Class A Special Common Stock, $1.00 par value.................
Warrants......................................................
Purchase Contracts............................................
Units.........................................................
Preferred Securities of Comcast Corporation Trust I...........
Preferred Securities of Comcast Corporation Trust II..........
Preferred Securities of Comcast Corporation Trust III.........
Guarantee of Preferred Securities of Comcast Corporation
Trust I, Comcast Corporation Trust II and
Comcast Corporation Trust III(4)..........................
====================================================================================================================================
(1) Such amount in U.S. dollars as shall result in an aggregate initial
offering price for all securities of $3,000,000,000. The Prospectus herein
covers $3,295,774,064 of securities, including securities for which the
registration fee has been previously paid in connection with the
registration statement referred to below. In addition, this Registration
Statement includes such presently indeterminate number of Securities (as
defined herein) as may be issuable from time to time upon conversion or
exchange of the Securities being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at a
discount or liquidation value of any Preferred Stock.
(4) Comcast Corporation is also registering under this registration statement
all other obligations that it may have with respect to Preferred Securities
issued by Comcast Corporation Trust I, Comcast Corporation Trust II and
Comcast Corporation Trust III. No separate consideration will be received
for any Guarantee or any other such obligations.
</TABLE>
Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
Prospectus which forms a part of this Registration Statement also relates to the
remaining $295,774,064 initial offering price of Securities registered under the
Registrant's Registration Statement on Form S-3, File No. 333-74289, which was
declared effective on March 11, 1999.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE>
Additional Registrants
Comcast Corporation Trust I Delaware To be applied for
Comcast Corporation Trust II Delaware To be applied for
Comcast Corporation Trust III Delaware To be applied for
(Exact name of registrant as (State of Other (I.R.S. Employer
Specified in its Charter) Jurisdiction or Identification No.)
Incorporation or
Organization)
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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.
PROSPECTUS Subject to Completion
Issued June 23, 1999
Comcast Corporation
COMCAST CORPORATION TRUST I
$3,000,000,000 COMCAST CORPORATION TRUST II
COMCAST CORPORATION TRUST III
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(215) 665-1700
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The following are types of securities that we may offer and sell under this
Prospectus:
o Class A Common Stock o Class A Special Common Stock
o Preferred Stock o Purchase Contracts
o Unsecured Senior Debt Securities o Depositary Shares
o Unsecured Subordinated Debt Securities
o Warrants
o Units
In addition, we, in conjunction with our newly created trust subsidiaries,
may offer and sell:
o Guaranteed Trust Preferred Securities and Guarantees thereof
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 o Conversion or Exchange Rights
o Dividends o Liquidation Amount
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Investing in the securities involves risks that are described under the
caption "Risk Factors" beginning on page 5.
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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.
- --------------------------------------------------------------------------------
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.
June ___, 1999.
<PAGE>
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..............................................................5
Comcast Corporation......................................................10
Trust Subsidiaries.......................................................10
Use of Proceeds..........................................................11
Dividend Policy..........................................................11
Ratio of Earnings to Fixed Charges and to Combined Fixed Charges
and Preferred Stock Dividends..........................................12
Description of the Senior Debt Securities and Subordinated Debt
Securities.............................................................12
Description of Warrants..................................................23
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
Description of Preferred Stock...........................................31
Description of Depositary Shares.........................................32
Description of Common Stock..............................................34
Plan of Distribution.....................................................35
Legal Matters............................................................36
Experts..................................................................36
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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 forms
of our underwriting agreements, copies of our Senior Indenture and Subordinated
Indenture, forms of our Senior Debt Security and Subordinated Debt Security, the
Declaration of Trust of each of our trust subsidiaries, a form of Amended and
Restated Declaration of Trust (which contains a form of a Trust Preferred
Security) to be adopted in connection with the issuance of any Guaranteed Trust
Preferred Securities, the Certificate of Trust of each of our trust
subsidiaries, a form of Guarantee for the Guaranteed Trust Preferred Securities,
a form of Unit Agreement (which contains a form of Purchase Contract Agreement),
a form of Pledge Agreement, a form of Warrant Agreement for Warrants sold alone
(which contains a form of Warrant for Warrants sold alone), a form of Warrant
Agreement for Warrants sold attached to Securities (which contains a form of
Warrant for Warrants sold attached to
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Securities) and a form of Deposit Agreement (which contains a form of Depository
Share). 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 any accompanying Prospectus
Supplement. We incorporate by reference the documents listed below, each of
which is filed under SEC File No. 000-06983, 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. Our Annual Report on Form 10-K for the year ended December 31, 1998;
2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999;
3. Our Current Reports on Form 8-K dated May 26, 1999, May 26, 1999, May
4, 1999, April 7, 1999, March 22, 1999, March 9, 1999, March 9, 1999 and
January 20, 1999; and
4. The description of our Class A Special Common Stock and Class A Common
Stock contained in the first amendment to our registration statement on
Form 8-A/A dated July 16, 1996.
We will provide free copies of any of those documents, if you write or
telephone us at: 1500 Market Street, Philadelphia, Pennsylvania 19102-2148,
(215) 665-1700.
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We are a Pennsylvania corporation and have an office at 1500 Market
Street, Philadelphia, Pennsylvania 19102-2148. Our telephone number is (215)
665-1700. We also have a world wide web site at http://www.comcast.com. The
information posted at our web site is not incorporated into this Prospectus. In
this Prospectus, the terms Company, Comcast, we, us and our refer to Comcast
Corporation. The term trust
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subsidiaries refers to Comcast Corporation Trust I, Comcast Corporation Trust II
and Comcast Corporation Trust III.
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.
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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 and the provision of programming content
may be affected by, among other things:
o changes in laws and regulations;
o judicial and administrative decisions;
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;
o demand for the programming content we
distribute or the willingness of other video
program distributors to carry our content; and
o general economic conditions.
Integration of Additional Cable Communications Operations
We recently have entered into a series of transactions which will
substantially increase the size and scope of our cable operations. When
completed over the next several years, these transactions, consisting of system
swaps and system acquisitions, will result in an increase in the number of
subscribers we serve from approximately 5.6 million, as of April 30, 1999, to in
excess of 8 million. We will be exchanging systems in communities where we have
developed relationships with the local franchising authority, community leaders
and our subscribers. We will be acquiring systems in other communities in which
we do not have such relationships. Further, a substantial number of new
employees must be integrated into our business practices and operations. Our
results of operations may be significantly affected by our ability to
efficiently and effectively manage these changes. Although historically we have
been successful in integrating new systems and employees into our existing
operations, we cannot provide assurances that we will be similarly successful in
the future.
Holding Company Structure; Dependence on Payments from Subsidiaries; Effective
Subordination
We are a holding company, which means that we conduct substantially 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:
o paying us management fees under the terms
of our management agreements with the
subsidiaries;
o paying us for programming on a basis which generally approximates the
amount each such subsidiary would be charged if it purchased such
programming directly from the supplier and did not benefit from our
consolidated operations;
o repaying investments and advances we have
made to them; or
o 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 we are offering
or to
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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. Some of our
subsidiaries' loan agreements require them to maintain certain financial ratios
and restrict their 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, nor do they require our subsidiaries to guarantee
our debt.
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 March 31, 1999, our subsidiaries' total indebtedness and
other liabilities (including trade payables and accrued liabilities) was
approximately $5.974 billion.
Competition in Cable Communications
Our cable communications systems compete with a number of different
sources which provide news, information and entertainment programming to
consumers, including:
o local television broadcast stations that provide off-air programming
which can be received using a roof-top antenna and television set;
o program distributors that transmit satellite signals containing video
programming, data and other information to receiving dishes of varying
sizes located on the subscriber's premises (see discussion of direct
broadcast satellite service ("DBS") below);
o other cable operators who build and operate cable systems in the same
communities that we serve, commonly known as broadband/ wireline
competitors;
o satellite master antenna television systems, commonly known as SMATV,
which generally serve condominiums, apartment and office complexes and
residential developments;
o multichannel, multipoint distribution service operators, commonly
known as MMDS or wireless cable operators, which use low-power
microwave frequencies to transmit video programming and other
information over-the-air to subscribers;
o interactive online computer services;
o newspapers, magazines and book stores;
o movie theaters;
o live concerts and sporting events; and
o home video products, including videotape
cassette recorders.
Our cable communications systems will be competitive if we provide, at a
reasonable price to subscribers, superior technical performance, superior
customer service and a greater variety of video programming and other
communications services than are available from our competitors.
Modifications to federal law in 1996 changed the regulatory environment in
which our cable communications systems operate. Federal law now allows local
telephone companies to provide directly to subscribers a wide variety of
services that are competitive with our cable communications services.
Some local telephone companies:
o provide video services within and outside their telephone service
areas through a variety of methods, including broadband cable
networks, satellite program distribution and wireless transmission
facilities; or
o have announced plans to construct and operate cable communications
systems in various states.
A local telephone company, Ameritech, has obtained approximately 14 cable
franchises in communities in Michigan that we also serve. It
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competes directly with us in these areas by providing video and other broadband
communications services to subscribers. 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.
Local telephone companies and other businesses construct and operate
communications facilities that provide access to the Internet and distribute
interactive computer-based services, data and other non-video services to homes
and businesses. These competitors are not required, in certain circumstances, to
comply with some of the material obligations imposed upon our cable systems
under our franchises. We cannot predict the likelihood of success of competing
video or broadband service ventures by local telephone companies or other
businesses. Nor can we predict the impact of these competitive ventures on our
cable communications systems and other businesses.
We operate each of our cable communications systems pursuant to a
non-exclusive franchise that is issued by the community's governing body such as
a city council, a county board of supervisors or a state regulatory agency.
Federal law prohibits franchising authorities from unreasonably denying requests
for additional franchises, and it permits franchising authorities to operate
cable systems. Companies that traditionally have not provided cable services and
that have substantial financial resources (such as public utilities that own
certain of the poles to which our cables are attached) may also obtain cable
franchises and may provide competing communications services.
In the past few years, Congress has enacted legislation and the FCC has
adopted regulatory policies intended to provide a more favorable operating
environment for existing and new technologies that provide, or have the
potential to provide, substantial competition to cable communications systems.
These technologies include direct broadcast satellite service, commonly known as
DBS, among others. According to recent government and industry reports,
conventional, medium and high-power satellites currently provide video
programming to over 11.4 million individual households, condominiums,
apartment and office complexes in the United States. DBS providers with medium
and high-power satellites typically offer to their subscribers more than 150
channels of programming, including program services similar to those provided by
cable systems.
DBS systems use video compression technology to increase channel capacity
and digital technology to improve the quality of the signals transmitted to
their subscribers. DBS service currently has certain competitive advantages and
disadvantages compared to cable service. Advantages of DBS service include more
programming, greater channel capacity and the digital quality of signals
delivered to subscribers. The disadvantages of DBS service include up-front
customer equipment and installation costs and an historical lack of local
programming and local service. Congress is currently considering various
legislative proposals that will permit DBS systems to retransmit local broadcast
signals to their subscribers. We are unable to predict the effect this
legislation, if adopted, may have on our business and operations.
DirecTV, a unit of Hughes Electronics Corporation, and EchoStar
Communications Corporation are currently offering nationwide high-power DBS
services. Both companies have either recently announced or closed separate
transactions that may significantly enhance the number of channels on which they
can provide programming to subscribers and may improve significantly their
competitive positions against cable operators. We are unable to predict the
effect these transactions may have on our business and operations.
Our cable systems also compete for subscribers with SMATV systems. SMATV
systems typically are not subject to regulation like local franchised cable
operators. SMATV systems offer subscribers both improved reception of local
television stations and many of the same satellite-delivered programming
services offered by franchised cable systems. In addition, some SMATV operators
are developing and/or offering packages of telephony, data and video services to
private residential and commercial developments. SMATV system operators often
enter into exclusive service agreements with building owners or homeowners'
associations, although some states have enacted laws to provide franchised cable
systems access to these complexes. Courts have reviewed challenges to these laws
and have reached varying results. Our ability to compete for subscribers in
residential and commercial developments served by SMATV system operators is
uncertain. However, we are developing competitive packages of services (video,
data and telephony) to offer to these residential and commercial developments.
Cable systems also compete with MMDS or wireless cable systems, which are
authorized to operate
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in areas served by our cable systems. Federal law significantly limits certain
local restrictions on the use of roof-top, satellite and microwave antennae to
receive satellite programming and over-the-air broadcasting services.
Many of our cable systems are currently offering, or plan to offer,
interactive online computer services to subscribers. These cable systems will
compete with a number of other companies, many of whom have substantial
resources, such as:
o existing Internet service providers,
commonly known as ISPs;
o local telephone companies; and
o long distance telephone companies.
Recently, a number of companies, including telephone companies and ISPs,
have requested local authorities and the FCC to require cable operators to
provide access to cable's broadband infrastructure so that these companies may
deliver Internet services directly to customers over cable facilities. In a
recent report to Congress, the FCC declined to institute an administrative
proceeding to examine this issue at this time. Several local jurisdictions
attempted to impose access obligations on several cable operators as a condition
for obtaining municipal consent for franchise transfers. It is expected that the
FCC, Congress, and state and local regulatory authorities will continue to
consider actions in this area.
The deployment of Digital Subscriber Line technology, known as DSL, will
allow Internet access to subscribers at data transmission speeds equal to or
greater than that of modems over conventional telephone lines. Several telephone
companies are introducing DSL service. The FCC initiated an administrative
proceeding to consider its authority and rules to facilitate the deployment of
advanced communications services, including high-speed broadband services and
interactive online services. We are unable to predict the ultimate outcome of
any FCC proceeding, the likelihood of success of the online services offered by
our competitors or the impact on our business and operations of these
competitive ventures.
We expect advances in communications technology, as well as changes in the
marketplace and the regulatory and legislative environment to occur in the
future. Other new technologies and services may develop and may compete with
services that our cable communications systems offer. Consequently, we are
unable to predict the effect that ongoing or future developments might have on
our business and operations.
Increasing Cost of Programming
We generally pay either a monthly fee per subscriber per channel or a
percentage of certain revenues for programming. Our programming costs are
increased by:
o increases in the number of subscribers;
o expansion of the number of channels
provided to customers; and
o increases in contract rates from programming
suppliers.
We attempt to secure long-term programming contracts with volume discounts
and/or marketing support and incentives from programming suppliers. Our
programming contracts are generally for a fixed period of time and are subject
to negotiated renewal. We anticipate that future contract renewals will result
in programming costs that are higher than our costs today, particularly for
sports programming.
Competition in Electronic Retailing
QVC is a domestic and international electronic media general merchandise
retailer which produces and distributes merchandise-focused television programs,
via satellite, to affiliated video program providers for retransmission to
subscribers. At QVC, program hosts describe and demonstrate the products and
viewers place orders directly with QVC. We own 57% of QVC.
QVC operates in a highly competitive environment. As a general merchandise
retailer, QVC competes for consumer expenditures and interest with the entire
retail industry, including department, discount, warehouse and specialty stores,
mail order, Internet and other direct sellers, shopping center and mall tenants
and conventional retail stores. Many of QVC's competitors are connected in chain
or franchise systems. On television, QVC competes with other
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satellite-transmitted programs for channel space and viewer loyalty. Many
systems have limited channel capacity and may be precluded from adding any new
programs at the present time. The development and use of digital compression is
expected to provide programming providers with greater channel capacity. Greater
channel capacity would increase the opportunity for QVC, in addition to other
home shopping programs, to be distributed on additional channels.
QVC Transmission Failures
An exclusive, protected, non-preemptible transponder on a communications
satellite transmits the QVC domestic signal. QVC subleases transponders for the
transmission of its signals to the UK and Germany. Each communications satellite
has a number of separate transponders. If our transponder fails, QVC's signal
will be transferred to a spare transponder. If no transponder is available, the
signal will be transferred to a preemptible transponder located on the same
satellite or, if available, to a transponder on another satellite owned by the
same lessor. The transponder cannot be preempted in favor of a user of a
"protected" transponder that has failed. QVC has never had an interruption in
programming due to transponder failure. Because it has the exclusive use of a
protected, non-preemptible transponder, interruption is unlikely to occur.
However, we cannot offer assurances that there will not be an interruption or
termination of satellite transmission due to transponder failure. Interruption
or termination could have a material adverse effect on QVC.
Substantial Leverage
Our capital structure includes a substantial amount of debt. As of March
31, 1999, our consolidated indebtedness was $6.291 billion, of which $2.490
billion constituted "Senior Indebtedness" under the Subordinated Indenture to be
dated as of June 15, 1999 between us and Bankers Trust Company, as Trustee. As
of March 31, 1999, our consolidated stockholders' equity was $5.029 billion. 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
businesses;
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 businesses.
Absence of Public Market for the Securities
The securities we are offering, other than our Class A Common Stock and
Class A Special Common Stock, 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, historical 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.
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COMCAST CORPORATION
We are principally engaged both in developing, managing and operating
hybrid fiber-coaxial broadband cable communications networks and in providing
programming content, primarily through QVC, our electronic retailing subsidiary.
We are currently the third-largest cable communications system operator in the
United States and are in the process of implementing high-speed Internet access
service and digital video applications to enhance the products available on our
cable networks.
Our consolidated cable operations served approximately 5.6 million
subscribers and passed approximately 9.4 million homes in the United States as
of April 30, 1999. We own interests in other cable communications companies
serving more than 238,000 subscribers as of April 30, 1999. In May of 1999, we
entered into a series of transactions with AT&T Corp. whereby we will acquire,
subject to receipt of necessary regulatory and other approvals, approximately 2
million cable subscribers from AT&T in a series of transactions over the next
three years. Upon completion of the AT&T transactions and other pending
transactions, we will serve in excess of 8 million subscribers.
We provide programming content through our majority-owned subsidiaries,
QVC, Inc. and E! Entertainment Television, Inc., and through other programming
investments, including Comcast SportsNet, The Golf Channel, Speedvision and
Outdoor Life. Through QVC, we market a wide variety of products directly to
consumers primarily on merchandise-focused television programs. QVC is
available, on a full and part-time basis, to over 72.2 million homes in the
United States, over 7.6 million homes in the United Kingdom and Ireland and over
14.9 million homes in Germany.
We are a Pennsylvania corporation that was organized in 1969. We have our
principal executive offices at 1500 Market Street, Philadelphia, Pennsylvania
19102-2148. Our telephone number is (215) 665-1700. We also have a world wide
web site at http://www.comcast.com. The information posted on our web site is
not incorporated into this Prospectus.
TRUST SUBSIDIARIES
Each trust subsidiary is a statutory business trust formed under Delaware
law under a separate declaration of trust on June 16, 1999. We executed, as
sponsor for each trust, 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.
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 our 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 have an aggregate liquidation
amount equal to no less than 3 percent of the total capital of each trust
subsidiary. 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. Each of our trust subsidiaries has a term of 55 years, but may
terminate earlier as provided in its Declaration. Each trust subsidiary's
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
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increase or decrease the number of, the trustees of each trust subsidiary. The
trustees' duties and obligations are governed by the trust subsidiaries'
Declarations. Prior to the issuance of any Guaranteed Trust Preferred
Securities, we will ensure that a majority of each trust subsidiary's trustees
are persons who are our employees or officers or affiliates and that one trustee
of each trust subsidiary is a financial institution that is not an affiliate of
ours. The unaffiliated financial institution 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 trust subsidiary will have its principal place of business or reside in
the State of Delaware. We will pay each trust subsidiary's 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
Corporation, 1500 Market Street, Philadelphia, Pennsylvania 19102-2148.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the Securities for
working capital and general corporate purposes. We may also invest the proceeds
in certificates of deposit, United States government securities or certain other
interest bearing securities. If we decide to use the net proceeds from a
particular offering of Securities for a specific purpose, we will describe that
in a 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.
DIVIDEND POLICY
We paid quarterly dividends on our common stock of $0.012 per share in
1997 and 1998 and in March 1999. We do not intend to pay dividends on our common
stock for the foreseeable future.
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RATIO OF EARNINGS TO FIXED CHARGES AND TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth our historical ratio of earnings to fixed
charges and to combined fixed charges and preferred stock dividends from
continuing operations. Earnings consist of income (loss) from continuing
operations before income taxes, extraordinary items, cumulative effect of
accounting changes, equity in net losses of affiliates and fixed charges. Fixed
charges consist of interest expense and capitalized interest. Combined fixed
charges and preferred stock dividends consist of fixed charges, as defined
above, and the amount of pre-tax earnings required to pay the dividends on our
preferred stock.
<TABLE>
Three Months Ended
March 31, Years Ended December 31,
------------------ --------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............. 2.69x 1.56x 5.54x 1.45x 1.45x 1.48x --(1)
Ratio of earnings to combined fixed charges 2.44x 1.43x 5.05x 1.38x 1.44x 1.48x --(1)
and preferred stock dividends...............
- --------------------
(1) Earnings were insufficient to cover fixed charges and combined fixed
charges and preferred stock dividends by $6.4 million for the year ended
December 31, 1994.
</TABLE>
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:
o in the case of Senior Debt Securities, under a Senior Indenture to be
dated as of June 15, 1999 between us and Bank of Montreal Trust Company, as
Trustee; and
o in the case of Subordinated Debt Securities, under a Subordinated
Indenture to be dated as of June 15, 1999 between us and Bankers Trust Company,
as Trustee.
In this section of the Prospectus, we refer to the Senior Indenture and
the Subordinated Indenture as the "Indentures." The Senior Indenture and 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 Common Stock," "Description of
Purchase Contracts" and "Description of Units," the terms we, us and our means
Comcast Corporation only, and not subsidiaries of Comcast Corporation.
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. A detailed description of the
subordination provisions is provided below under the caption "Certain Terms of
the Subordinated Debt Securities -- Subordination". In general, however, if we
declare bankruptcy the Senior Debt Securities will be paid in full before the
Subordinated Debt Securities will receive anything.
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 paying us management fees under the terms of our
management agreements with them, paying us for programming and repaying
investments
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and advances we have made to them, and upon our subsidiaries' 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. 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 will 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 fund 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 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
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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 Subsidiary with a positive net worth; provided that, in connection
with any merger of us and a Wholly-Owned 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 or limited liability company
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 in the Indenture and the Debt Securities relating to such
transaction have been complied with; provided, however, that the foregoing
limitations will 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 for a series of Senior Debt Securities is defined
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 due and payable whether at maturity, upon
acceleration, redemption, or otherwise;
o our default in the payment of interest on any Senior Debt Securities of
such series when due and payable, if that default continues for a period of 30
days;
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o we default in the performance of or we breach any of our other covenants
or agreements in the Senior Indenture applicable to all the Senior Debt
Securities or applicable to Senior Debt Securities of such series and that
default or breach continues for a period of 90 consecutive days after we receive
written notice from the Trustee or from the Holders (as defined in the Senior
Indenture) of 25% or more in aggregate principal amount of the Senior Debt
Securities of such series;
o a court having jurisdiction enters a decree or order for:
o relief in respect of us 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 for all or
substantially all of our property and assets; or
o the winding up or liquidation of our affairs and such decree or
order shall remain unstayed and in effect for a period of 180
consecutive days.
o we:
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 for all or substantially all of our
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. Unless otherwise specified in the Prospectus Supplement
relating to a series of Debt Securities originally issued at a discount, the
amount due upon acceleration shall include only the original issue price of the
Debt Securities, the amount of original issue discount accrued to the date of
acceleration and accrued interest, if any.
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
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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 in respect of such Event of Default;
o the requesting 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.
These limitations, however, 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 for 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 120 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 and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, 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
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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:
(1) either an opinion of counsel that 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) or a ruling directed to the Trustee received from the
Internal Revenue Service to the same effect; and
(2) an opinion of counsel that 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
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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.
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;
o to make any change that does not adversely affect the rights of any
holder;
o to add to our covenants such new covenants, restrictions, conditions or
provisions 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 an Event of Default; or
o to make any change so long as no Senior Debt Securities are outstanding.
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 each affected
holder must consent to any modification, amendment or waiver that,
o changes the stated maturity of the principal of, or any installment of
interest on, any Senior Debt Securities of such series;
o reduces the principal amount of, or premium, if any, or interest on, any
Senior Debt Securities of such series;
o changes the place or currency of payment of principal of, or premium, if
any, or interest on, any Senior Debt Securities of such series;
o changes the provisions for calculating the optional redemption price,
including the definitions relating thereto;
o changes the provisions relating to the waiver of past defaults or change
or impair the right of holders to receive payment or to institute suit for the
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enforcement of any payment of any Senior Debt Securities of such series on or
after the due date therefor;
o reduces 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 alters or impairs the right to convert the Senior Debt Security at the
rate and upon the terms provided in the Indenture;
o waives a default in the payment of principal of or interest on the
Senior Debt Securities;
o adversely affects 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 modifies 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 by the modification.
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.
Governing Law
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the internal laws of the State of New York.
The Trustees
We may have normal banking relationships with the trustees under the
Indentures in the ordinary course of business.
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Certain Terms of the Subordinated Debt Securities
Other than the terms of the Subordinated Indenture and Subordinated Debt
Securities relating to subordination, or otherwise as described in the
Prospectus Supplement relating to a particular series of Subordinated Debt
Securities, the terms of the Subordinated Indenture and Subordinated Debt
Securities are identical, in all material respects, to the terms of the Senior
Indenture and Senior Debt Securities.
Subordination
The indebtedness evidenced by the Subordinated Debt Securities is
subordinate to the prior payment in full of all Senior Indebtedness, as defined
in the Subordinated Indenture. During the continuance beyond any applicable
grace period of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness, we may not make any payment of
principal of, or premium, if any, or interest on the Subordinated Debt
Securities. In addition, upon any distribution of our assets upon any
dissolution, winding up, liquidation or reorganization, the payment of the
principal of, or premium, if any, and interest on the Subordinated Debt
Securities is to be subordinated to the extent provided in the Subordinated
Indenture in right of payment to the prior payment in full of all Senior
Indebtedness. Because of this subordination, if we dissolve or otherwise
liquidate, holders of Senior Indebtedness may receive more, ratably, and holders
of our Subordinated Debt Securities may receive less, ratably, than our other
Creditors. The subordination provisions do not prevent the occurrence of an
Event of Default under the Subordinated Indenture.
The term "Senior Indebtedness" means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following, whether
outstanding today or incurred by us in the future:
o all of our indebtedness for money borrowed, including any indebtedness
secured by a mortgage or other lien which is (1) given to secure all or part of
the purchase price of property subject to the mortgage or lien, whether given to
the vendor of that property or to another lender, or (2) existing on property at
the time we acquire it;
o all of our indebtedness evidences by notes, debentures, bonds or other
securities sold by us for money;
o all of our lease obligations which are capitalized on our books in
accordance with generally accepted accounting principles;
o all indebtedness of others of the kinds described in the first two
bullet points above and all lease obligations of others of the kind described in
the third bullet point above that we, in any manner, assume or guarantee or that
we in effect guarantee through an agreement to purchase, whether that agreement
is contingent or otherwise; and
o all renewals, extensions or refundings of indebtedness of the kinds
described in the first, second or fourth bullet point above and all renewals or
extensions of leases of the kinds described in the third or fourth bullet point
above;
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing it or the assumption
or guarantee relating to it expressly provides that such indebtedness, lease,
renewal, extension or refunding is not superior in right of payment to the
Subordinated Debt Securities. Our Senior Debt Securities, and any indebtedness
outstanding under our Senior Subordinated Debentures Indenture dated as of
October 17, 1991 between us and Morgan Guaranty Trust Company of New York, as
trustee, constitute Senior Indebtedness for purposes of the Subordinated Debt
Indenture.
Special Terms Applicable to the 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.
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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; 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 (1) purchases or acquisitions of shares of our common stock in
connection with the satisfaction by us of our obligations under any
employee benefit plans, (2) 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
(3) 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; except in the case of debt
securities that rank equally with such Subordinated Debt Securities,
on a pro rata basis.
If (1) 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 (2) 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 (1) purchases or acquisitions of shares of our common stock
to satisfy our obligations under any employee benefit plans, (2) as a result of
a reclassification of our capital stock for another class or series of our
capital stock or (3) 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; except in the case
of debt securities that rank equally with such Subordinated Debt Securities, on
a pro rata basis.
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
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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.
Events of Default, Waiver and Notice
In addition to the "Events of Default" applicable to all Subordinated Debt
Securities, if we issue Subordinated Debt Securities 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 following
will also constitute an "Events of Default":
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.
Convertible Debt Securities
The terms, if any, on which Offered Debt Securities may be (mandatorily or
otherwise) exchanged for or converted into other Debt Securities or shares of
Preferred Stock, Class A Common Stock or Class A Special Common Stock or other
securities or rights of ours (including rights to receive payments in cash or
securities based on the value, rate or price of one or more specified
commodities, currencies or indices) or securities of other issuers or any
combination of the foregoing will be set forth in the Prospectus Supplement for
such Offered Debt Securities.
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to Offered Debt Securities that may be exchanged for or
converted into Capital Stock:
The holder of any Debt Securities convertible into capital stock will have
the right exercisable at any time during the time period specified in the
Prospectus Supplement, unless previously redeemed by us, to convert such Debt
Securities into shares of capital stock (which may include Preferred Stock,
Class A Common Stock or Class A Special Common Stock) as specified in the
Prospectus Supplement, at the conversion rate for each $1,000 principal amount
of Debt Securities set forth in the Prospectus Supplement, subject to
adjustment.
The holder of a convertible Debt Security may convert a portion thereof
which is $1,000 or any integral multiple of $1,000. In the case of Debt
Securities called for redemption, conversion rights will expire at the close of
business on the business day prior to the date fixed for the redemption as may
be specified in the Prospectus Supplement, except that in the case of redemption
at the option of the Debt Security holder, if applicable, such right will
terminate upon receipt of written notice of the exercise of such option.
Unless the terms of the specific Offered Debt Securities provide
otherwise, in certain events, the conversion rate will be subject to adjustment
as set forth in the Indentures. Such events include:
o the issuance of shares of any class of Capital Stock of ours as a
dividend on the class of Capital Stock into which the Debt Securities of such
series are convertible;
o subdivisions, combinations and reclassifications of the class of Capital
Stock into which Debt Securities of such series are convertible;
o the issuance to all holders of the class of Capital Stock into which
Debt Securities of such series are convertible of rights or warrants entitling
the Debt Security holders (for a period not exceeding 45 days) to subscribe for
or purchase shares of such class of Capital Stock at a price per share less than
the current market price per share of such class of Capital Stock (as defined in
the Indentures);
o the distribution to all holders of the class of Capital Stock into which
Debt Securities of such series
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are convertible of evidences of indebtedness of ours or of assets (excluding
cash dividends paid from retained earnings and dividends payable in Capital
Stock for which adjustment is made as referred to above and excluding
distributions of cash in excess of certain threshold amounts referred to below)
or subscription rights or warrants (other than those referred to above); and
o distributions of cash in excess of certain threshold amounts.
In the case of cash dividends in excess of threshold amounts, we may, at
our option, choose to set aside the amount of such distribution in cash for
distribution to the holder upon conversion rather than adjust the conversion
rate; we do not intend to pay interest on the cash set aside.
No adjustment of the conversion rate will be required unless an adjustment
would require a cumulative increase or decrease of at least 1% in such rate.
Fractional shares of Capital Stock will not be issued upon conversion but, in
lieu thereof, we will pay a cash adjustment. Convertible Debt Securities
surrendered for conversion between the record date for an interest payment, if
any, and the interest payment date (except convertible Debt Securities called
for redemption on a redemption date during such period) must be accompanied by
payment of an amount equal to the interest thereon which the registered holder
is to receive.
DESCRIPTION OF WARRANTS
General
We may issue Warrants to purchase Securities or other securities or rights
of ours (including rights to receive payment in cash or securities based on the
value, rate or price of one or more specified commodities, currencies or
indices) or securities of other issuers or any combination of the foregoing.
Warrants may be issued independently or together with any Securities and may be
attached to or separate from such Securities. Each series of Warrants will be
issued under a separate warrant agreement (each a "Warrant Agreement") to be
entered into between us and a warrant agent ("Warrant Agent"). The following
sets forth certain general terms and provisions of the Warrants offered hereby.
Further terms of the Warrants and the applicable Warrant Agreement are set forth
in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms of
any Warrants in respect of which this Prospectus is being delivered:
o the title of such Warrants;
o the aggregate number of such Warrants;
o the price or prices at which such Warrants will be issued;
o the currency or currencies, including composite currencies, in which the
price of such Warrants may be payable;
o the Securities or other securities or rights of ours (including rights
to receive payment in cash or securities based on the value, rate or price of
one or more specified commodities, currencies or indices) or securities of other
issuers or any combination of the foregoing purchasable upon exercise of such
Warrants;
o the price at which and the currency or currencies, including composite
currencies, in which the Securities purchasable upon exercise of such Warrants
may be purchased;
o the date on which the right to exercise such Warrants shall commence and
the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such Warrants which may
be exercised at any one time;
o if applicable, the designation and terms of the Securities with which
such Warrants are issued and the number of such Warrants issued with each such
Security;
o if applicable, the date on and after which such Warrants and the related
Securities will be separately transferable;
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o information with respect to book-entry procedures, if any;
o if applicable, a discussion of certain United States Federal income tax
considerations; and
o any other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Warrants.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue Purchase Contracts for the purchase or sale of:
o our securities or securities of an entity unaffiliated or affiliated
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 may constitute indebtedness. 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, Warrants, Debt Securities, Guaranteed Trust
Preferred Securities, Preferred Stock, Class A Common Stock or Class A Special
Common Stock or any combination thereof. Reference is made to the applicable
Prospectus Supplement for:
o all terms of the Units and of the Purchase Contracts, Warrants, Debt
Securities, Guaranteed Trust Preferred Securities, shares of Preferred Stock,
shares of Class A Common Stock or shares of Class A Special Common Stock, 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 trust subsidiary 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 trust subsidiary 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
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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 applicable Prospectus Supplement. You should look in the
Prospectus Supplement for the specific terms of the Guaranteed Trust Preferred
Securities, including:
o the distinctive designation and number of the Guaranteed Trust Preferred
Securities;
o the annual distribution rate (or method of determining such rate) for
the Guaranteed Trust Preferred Securities 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 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 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 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.
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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 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 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 Institutional
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 for 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 the applicable trust
subsidiary has funds available for such payment;
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o the redemption price, including all accrued and unpaid distributions
(the "Redemption Price"), to the extent the applicable 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 Debt Security 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; except in the case of debt securities that rank equally with such
Subordinated Debt Securities, on a pro rata basis.
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
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prior approval of the holders of not less than a majority in liquidation amount
of the related 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 the related 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 Guaranteed Trust 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 Guaranteed Trust
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
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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 may maintain a banking relationship with
the Preferred Guarantee Trustee.
Governing Law
The Guaranteed Trust Preferred Securities Guarantees will be governed by,
and construed and interpreted in accordance with the laws of the State of New
York.
GLOBAL SECURITIES
We may issue the Debt Securities, Warrants, Purchase Contracts, Guaranteed
Trust Preferred Securities, Guaranteed Trust Preferred Securities Guarantee 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, Guaranteed Trust
Preferred Securities Guarantee 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
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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, Guaranteed Trust Preferred Securities
Guarantee 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, Guaranteed Trust Preferred Securities Guarantee 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, Guaranteed Trust Preferred Securities Guarantee 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 Warrants, Purchase Contracts, Preferred
Securities, Guaranteed Trust Preferred Securities Guarantee 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.
DESCRIPTION OF PREFERRED STOCK
Our Board of Directors is authorized to issue in one or more series up to
a maximum of 20,000,000 shares of preferred stock, without par value. The shares
can be issued with such designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion or exchange rights and other
special or relative rights as the Board of Directors shall from time to time fix
by resolution. The dividend,
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voting, conversion, exchange, repurchase and redemption rights, if applicable,
the liquidation preference, and other specific terms of each series of the
Preferred Stock will be set forth in the Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms of
any Preferred Stock in respect of which this Prospectus is being delivered (to
the extent applicable to such Preferred Stock):
o the specific designation, number of shares, seniority and purchase
price;
o any liquidation preference per share;
o any date of maturity;
o any redemption, repayment or sinking fund provisions;
o any dividend rate or rates and the dates on which any such dividends
will be payable (or the method by which such rates or dates will be determined);
o any voting rights;
o if other than the currency of the United States of America, the currency
or currencies including composite currencies in which such Preferred Stock is
denominated and/or in which payments will or may be payable;
o the method by which amounts in respect of such Preferred Stock may be
calculated and any commodities, currencies or indices, or value, rate or price,
relevant to such calculation;
o whether the Preferred Stock is convertible or exchangeable and, if so,
the securities or rights into which such Preferred Stock is convertible or
exchangeable (which may include other Preferred Stock, Debt Securities, Class A
Common Stock, Class A Special Common Stock or other securities or rights of ours
(including rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies or indices) or
securities of other issuers or a combination of the foregoing), and the terms
and conditions upon which such conversions or exchanges will be effected
including the initial conversion or exchange prices or rates, the conversion or
exchange period and any other related provisions;
o the place or places where dividends and other payments on the Preferred
Stock will be payable; and
o any additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
As described under "Description of Depositary Shares," we may, at our
option, elect to offer depositary shares ("Depositary Shares") evidenced by
depositary receipts ("Depositary Receipts"), each representing an interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
All shares of Preferred Stock offered hereby, or issuable upon conversion,
exchange or exercise of Securities, will, when issued, be fully paid and
non-assessable. We have been advised that the Preferred Stock will be exempt
from existing Pennsylvania personal property tax.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series of the
Preferred Stock.
General
We may, at our option, elect to have shares of Preferred Stock be
represented by Depositary Shares. The shares of any series of the Preferred
Stock underlying the Depositary Shares will be deposited under a separate
deposit agreement (the "Deposit Agreement") between us and a bank or trust
company
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selected by us (the "Depositary"). The Prospectus Supplement relating to a
series of Depositary Shares will set forth the name and address of the
Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable interest in
the number of shares of Preferred Stock underlying such Depositary Share, to all
the rights and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion, exchange and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the shares of Preferred Stock
underlying the Depositary Shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares representing such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto or the Depositary may, with our approval, sell such property
and distribute the net proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by us to holders of Preferred
Stock shall be made available to holders of Depositary Shares.
Conversion and Exchange
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the Prospectus
Supplement relating thereto, each record holder of Depositary Shares will have
the right or obligation to convert or exchange such Depositary Shares pursuant
to the terms thereof.
Redemption of Depositary Shares
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of the
Preferred Stock held by the Depositary. The redemption price per Depositary
Share will be equal to the aggregate redemption price payable with respect to
the number of shares of Preferred Stock underlying the Depositary Shares.
Whenever we redeem Preferred Stock from the Depositary, the Depositary will
redeem as of the same redemption date a proportionate number of Depositary
Shares representing the shares of Preferred Stock that were redeemed. If less
than all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as may be determined by us.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price payable upon such redemption. Any funds deposited by us with
the Depositary for any Depositary Shares which the holders thereof fail to
redeem shall be returned to us after a period of two years from the date such
funds are so deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of any meeting at
which the holders of any shares of Preferred Stock underlying the Depositary
Shares are entitled to vote, the Depositary will mail the information contained
in such notice to the record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Shares on the record date
(which will be the same date as the record date for the Preferred Stock) will be
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entitled to instruct the Depositary as to the exercise of the voting rights
pertaining to the number of shares of Preferred Stock underlying such holder's
Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and we will agree to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
do so.
Amendment of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between us and the Depositary, provided, however, that any amendment which
materially and adversely alters the rights of the existing holders of Depositary
Shares will not be effective unless such amendment has been approved by at least
a majority of the Depositary Shares then outstanding.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges that
arise solely from the existence of the depositary arrangements. We will pay
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any exchange or redemption of the Preferred Stock. Holders
of Depositary Shares will pay all other transfer and other taxes and
governmental charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
Miscellaneous
We, or at our option, the Depositary, will forward to the holders of
Depositary Shares all reports and communications from us which we are required
to furnish to the holders of Preferred Stock.
Neither the Depositary nor we will be liable if either of us is prevented
or delayed by law or any circumstances beyond our control in performing our
obligations under the Deposit Agreement. Our obligations and those of the
Depositary under the Deposit Agreement will be limited to performance in good
faith of our duties thereunder and we and the Depositary will not be obligated
to prosecute or defend any legal proceeding in respect of any Depositary Share
or Preferred Stock unless satisfactory indemnity has been furnished. We and the
Depositary may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
Resignation and Removal of Depositary; Termination of the Deposit Agreement
The Depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
will be appointed by us within 60 days after delivery of the notice of
resignation or removal. The Deposit Agreement may be terminated at our direction
or by the Depositary if a period of 90 days shall have expired after the
Depositary has delivered to us written notice of its election to resign and a
successor depositary shall not have been appointed. Upon termination of the
Deposit Agreement, the Depositary will discontinue the transfer of Depositary
Receipts, will suspend the distribution of dividends to the holders thereof, and
will not give any further notices (other than notice of such termination) or
perform any further acts under the Deposit Agreement except that the Depositary
will continue to deliver Preferred Stock certificates, together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property in exchange for Depositary Receipts
surrendered. Upon our request, the Depositary shall deliver all books, records,
certificates evidencing Preferred Stock, Depositary Receipts and other documents
relating to the subject matter of the Depositary Agreement to us.
DESCRIPTION OF COMMON STOCK
The statements made under this caption include summaries of certain
provisions contained in our Articles of Incorporation and By-Laws. These
statements do not purport to be complete and are qualified in their entirety by
reference to such Articles of incorporation and By-Laws.
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We have three classes of Common Stock outstanding: Class A Special Common
Stock, $1.00 par value per share; Class A Common Stock, $1.00 par value per
share; and Class B Common Stock, $1.00 par value per share. There are currently
2,500,000,000 shares of Class A Special Common Stock, 200,000,000 shares of
Class A Common Stock and 50,000,000 shares of Class B Common Stock authorized.
At the close of business on May 3, 1999, there were 699,622,625 shares of Class
A Special Common Stock, 31,498,791 shares of Class A Common Stock and 9,444,375
shares of Class B Common Stock outstanding.
Dividends
Subject to the preferential rights of any preferred stock then
outstanding, the holders of Class A Special Common Stock, Class A Common Stock
and Class B Common Stock are entitled to receive pro rata per share such cash
dividends as from time to time may be declared by our Board of Directors out of
funds legally available therefor. Each class of our Common Stock is to receive
dividends, as declared, on an equal basis per share.
Stock dividends on, and stock splits of, any class of Common Stock shall
not be paid or issued unless paid or issued on all classes of Common Stock, in
which case they are to be paid or issued only in shares of that class or in
shares of either Class A Common Stock or Class A Special Common Stock.
Voting Rights
The holders of the Class A Special Common Stock are not entitled to vote
in the election of directors or otherwise, except where class voting is required
by applicable law or our Articles of Incorporation, in which case, each holder
of Class A Special Common Stock shall be entitled to one vote per share. Each
holder of Class A Common Stock has one vote per share and each holder of Class B
Common Stock has 15 votes per share. The Articles of Incorporation provide that
the Class A Special Common Stock, the Class A Common Stock and the Class B
Common Stock vote as separate classes on certain amendments to the Articles of
Incorporation regarding conversion rights of the Class B Common Stock and as
required by applicable law. Under applicable law, holders of Class A Special
Common Stock have voting rights in the event of certain amendments to the
Articles of Incorporation and certain mergers and other fundamental corporate
changes. In all other instances, including the election of directors, the Class
A Common Stock and the Class B Common Stock vote as one class. Neither the
holders of Class A Common Stock nor the holders of Class B Common Stock have
cumulative voting rights.
Principal Shareholder
At February 28, 1999, Sural Corporation ("Sural"), a Delaware corporation,
owned 8,786,250 shares of our outstanding Class B Common Stock and 795,038
shares of our outstanding Class A Common Stock. Mr. Brian L. Roberts, our
President, owns stock representing substantially all of the voting power of all
classes of voting securities of Sural. Pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, Mr. Roberts is deemed to be the beneficial
owner of the shares of Class B Common Stock and Class A Common Stock owned by
Sural, and he is deemed to be the beneficial owner of an additional 4,061 shares
of Class A Common Stock (including 1,356 shares owned by his wife, as to which
he disclaims beneficial ownership). Since each share of Class B Common Stock is
entitled to fifteen votes, the shares of Class A Common Stock and Class B Common
Stock owned by Sural and Mr. Roberts constitutes approximately 77% of the voting
power of the two classes of our voting Common Stock combined. The Class B Common
Stock is convertible on a share-for-share basis into Class A Common Stock or
Class A Special Common Stock. If Sural and Mr. Roberts were to convert the Class
B Common Stock which they are deemed to beneficially own into Class A Common
Stock, Mr. Roberts would beneficially own 9,585,349 shares of Class A Common
Stock (approximately 24% of the Class A Common Stock).
Conversion of Class B Common Stock
The Class B Common Stock is convertible share for share into either the
Class A Common Stock or the Class A Special Common Stock.
Preference on liquidation
In the event of the liquidation, dissolution or winding up, either
voluntary or involuntary, of us, the holders of Class A Special Common Stock,
Class A Common Stock and Class B Common Stock are entitled to receive, subject
to any liquidation preference
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of any preferred stock then outstanding, our remaining assets, if any, in
proportion to the number of shares held by them without regard to class.
Miscellaneous
The holders of Class A Special Common Stock, Class A Common Stock and
Class B Common Stock do not have any preemptive rights, except that if the right
to subscribe to stock, options or warrants to purchase stock is offered or
granted to all holders of Class A Special Common Stock or Class A Common Stock,
parallel rights must be given to all holders of Class B Common Stock. All shares
of Class A Special Common Stock, Class A Common Stock and Class B Common Stock
presently outstanding are, and all shares of the Class A Special Common Stock
and Class A Common Stock offered hereby, or issuable upon conversion, exchange
or exercise of Securities, will, when issued, be, fully paid and non-assessable.
We have been advised that the Class A Special Common Stock and Class A Common
Stock are exempt from existing Pennsylvania personal property tax.
The transfer agent and registrar for our Class A Special Common Stock and
Class A Common Stock is The Bank of New York, One Wall Street, New York, New
York 10286.
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.
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
35
<PAGE>
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
As to matters governed by Pennsylvania law, Arthur R. Block, Esquire,
Senior Deputy General Counsel of the Company, and as to matters governed by New
York law, 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. Unless otherwise indicated in the
accompanying Prospectus Supplement, legal matters will be passed upon for the
underwriters or agents by Cahill Gordon & Reindel (a partnership including a
professional organization).
EXPERTS
Our consolidated financial statements and consolidated financial statement
schedules in our Annual Report on Form 10-K for the year ended December 31, 1998
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.
The financial statements of QVC, Inc. and subsidiaries, as of December 31,
1998 and 1997 and for each of the three years in the period ended December 31,
1998, have been audited by KPMG LLP, independent auditors, as stated in their
report, which is included as an exhibit to our Annual Report on Form 10-K for
the fiscal year ended December 31, 1998 and incorporated herein by reference in
reliance upon their authority as experts in accounting and auditing.
36
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
All of the expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee........ $ 834,000
Legal fees and expenses.................................... 50,000*
Printing and engraving fees................................ 75,000*
Accountants' fees and expenses............................. 25,000*
Miscellaneous.............................................. 16,000*
---------
Total................................................. $ 1,000,000*
=========
- --------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter C, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988 (the "BCL") contain provisions for
mandatory and discretionary indemnification of a corporation's directors,
officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has the
power to indemnify directors and officers under certain prescribed circumstances
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with an action or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his being a director, officer, employee or
agent of the corporation or serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, 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 proceeding, has no reasonable
cause to believe his conduct was unlawful. Under Section 1743, indemnification
is mandatory to the extent that the director, officer, employee or agent has
been successful on the merits or otherwise in defense of any action or
proceeding relating to third-party or derivative actions if the appropriate
standards of conduct are met.
Section 1742 provides for indemnification in derivative actions except in
respect of any claim, issue or matter as to which the person has been adjudged
to be liable to the corporation unless and only to the extent that the proper
court determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expense that the court deems proper.
Section 1744 provides that, unless ordered by a court, any indemnification
under Sections 1741 or 1742 shall be made by the corporation as authorized in
the specific case upon a determination that the representative met the
applicable standard of conduct set forth in those sections and such
determination shall be made by the board of directors by majority vote of a
quorum of directors not parties to the action or proceeding; if a quorum is not
obtainable or if obtainable and a majority of disinterested directors so
directs, by independent legal counsel; or by the shareholders.
Section 1745 provides that expenses incurred by an officer, director,
employee or agent in defending a civil or criminal action or proceeding may be
paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation.
II-1
<PAGE>
Section 1746 provides generally that except in any case where the act or
failure to act giving rise to the claim for indemnification is determined by the
court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by this Subchapter of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office.
Section 1747 also grants a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred by
him in his capacity as officer or director, whether or not the corporation would
have the power to indemnify him against the liability under this Subchapter of
the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Sections 1741-1750 of the BCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, Sections 1741-1750 of the BCL shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs and personal representative of such person.
For information regarding provisions under which a director or officer of
the Company may be insured or indemnified in any manner against any liability
which he may incur in his capacity as such, reference is made to Article VII of
the Company's By-Laws.
Item 16. Exhibits.
The following exhibits are filed as part of the Registration Statement:
Exhibit
Number Description
------- -----------
1.1** Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2** Form of Underwriting Agreement (Preferred Stock, Depositary
Shares, Common Stock).
1.3** Form of Underwriting Agreement (Preferred Securities).
3(ii) Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to our Annual Report on Form 10-K for the year
ended December 31, 1993).
4.1** Senior Indenture to be dated as of June 15, 1999 between the
Company and Bank of Montreal Trust Company, as Trustee.
4.2** Subordinated Indenture to be dated as of June 15, 1999 between
the Company and Bankers Trust Company, as Trustee.
4.3** Certificate of Trust of Comcast Corporation Trust I.
4.4** Certificate of Trust of Comcast Corporation Trust II.
4.5** Certificate of Trust of Comcast Corporation Trust III.
4.6** Declaration of Trust of Comcast Corporation Trust I.
4.7** Declaration of Trust of Comcast Corporation Trust II.
II-2
<PAGE>
4.8** Declaration of Trust of Comcast Corporation Trust III.
4.9** Form of Amended and Restated Declaration of Trust for each of
Comcast Corporation Trust I, Comcast Corporation Trust II and
Comcast Corporation Trust III.
4.10** Form of Senior Debt Security.
4.11** Form of Subordinated Debt Security.
4.12 Form of Preferred Security (included in Exhibit 4.9).
4.13** Form of Preferred Securities Guarantee with respect to Preferred
Securities.
4.14* Form of Purchase Contract Agreement relating to Purchase
Contracts (to be included in Exhibit 4.15).
4.15* Form of Unit Agreement.
4.16** Form of Warrant Agreement for Warrants Sold Alone.
4.17 Form of Warrant for Warrants Sold Alone (included in Exhibit
4.16).
4.18** Form of Warrant Agreement for Warrants Sold Attached to
Securities.
4.19 Form of Warrant for Warrants Sold Attached to Securities
(included in Exhibit 4.18).
4.20** Form of Pledge Agreement.
4.21** Form of Deposit Agreement.
4.22 Form of Depositary Share (included in Exhibit 4.21).
5.1** Opinion of Arthur R. Block, Esquire.
5.2** Opinion of Davis Polk & Wardwell.
5.3** Opinion of Richards, Layton & Finger.
12.1** Statement re: Computation of Ratios of Earnings to Fixed Charges
and Combined Fixed Charges and Preferred Dividends.
23.1** Consent of Deloitte & Touche LLP.
23.2** Consent of KPMG LLP.
23.3 Consent of Arthur R. Block, Esquire (included in Exhibit 5.1).
23.4 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
23.5 Consent of Richards, Layton & Finger (included in Exhibit 5.3).
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 Trust Company, as Trustee under
the Senior Indenture.
II-3
<PAGE>
25.2** Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of Bankers Trust Company, as Trustee under the
Subordinated Indenture.
25.3* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Corporation
Trust I.
25.4* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Corporation
Trust II.
25.5* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Corporation
Trust III.
- --------------------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
1. (a) 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 (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 subparagraphs (a) (i) and (a) (ii) shall not apply
to the extent that information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") that are incorporated by reference in the
Registration Statement.
(b) 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.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement
II-4
<PAGE>
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. If the securities to be registered are to be offered at competitive
bidding, the undersigned registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Securities Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later thin the first use, authorized by the issuer after
the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the
issuer and no reoffering of such securities by the purchasers is proposed to be
made.
4. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has 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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Comcast
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in Philadelphia, Pennsylvania, on June 23, 1999.
COMCAST CORPORATION
By: /s/ Brian L. Roberts
-----------------------------------
Brian L. Roberts, 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 Wang and Arthur R. Block
and each of them, his (her) true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him (her) and in his (her)
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 statements for amendment thereto filed pursuant to Rule
462 promulgated under the Securities Act of 1933, 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 (she) 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 by virtue hereof.
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>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ralph J. Roberts Chairman of the Board of Directors June 23, 1999
- -------------------------------- and Director
Ralph J. Roberts
/s/ Julian A. Brodsky Vice Chairman and Director June 23, 1999
- --------------------------------
Julian A. Brodsky
/s/ Brian L. Roberts President (Principal Executive June 23, 1999
- -------------------------------- Officer) and Director
Brian L. Roberts
/s/ Lawrence S. Smith Executive Vice President June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Lawrence S. Smith
/s/ John R. Alchin Senior Vice President and Treasurer June 23, 1999
- -------------------------------- (Principal Financial Officer)
John R. Alchin
<PAGE>
/s/ Gustave G. Amsterdam Director June 23, 1999
- --------------------------------
Gustave G. Amsterdam
/s/ Sheldon M. Bonovitz Director June 23, 1999
- --------------------------------
Sheldon M. Bonovitz
/s/ Joseph L. Castle II Director June 23, 1999
- --------------------------------
Joseph L. Castle II
/s/ Bernard C. Watson Director June 23, 1999
- --------------------------------
Bernard C. Watson
/s/ Irving A. Wechsler Director June 23, 1999
- --------------------------------
Irving A. Wechsler
/s/ Anne Wexler Director June 23, 1999
- --------------------------------
Anne Wexler
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Comcast Corporation Trust I, Comcast Corporation Trust II and Comcast
Corporation 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 and State of Pennsylvania on
June 23, 1999.
COMCAST CORPORATION TRUST I
By: /s/ Donald J. Puglisi
--------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ William E. Dordelman
--------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CORPORATION TRUST II
By: /s/ Donald J. Puglisi
--------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ William E. Dordelman
--------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CORPORATION TRUST III
By: /s/ Donald J. Puglisi
--------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: William E. Dordelman
--------------------------------
Name: William E. Dordelman
Title: Trustee
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1.1 ** Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2 ** Form of Underwriting Agreement (Preferred Stock, Depositary
Shares, Common Stock).
1.3 ** Form of Underwriting Agreement (Preferred Securities).
3(ii) Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to our Annual Report on Form 10-K for the
year ended December 31, 1993).
4.1 ** Senior Indenture to be dated as of June 15, 1999 between
the Company and Bank of Montreal Trust Company, as Trustee.
4.2 ** Subordinated Indenture to be dated as of June 15, 1999
between the Company and Bankers Trust Company, as Trustee.
4.3 ** Certificate of Trust of Comcast Corporation Trust I.
4.4 ** Certificate of Trust of Comcast Corporation Trust II.
4.5 ** Certificate of Trust of Comcast Corporation Trust III.
4.6 ** Declaration of Trust of Comcast Corporation Trust I.
4.7 ** Declaration of Trust of Comcast Corporation Trust II.
4.8 ** Declaration of Trust of Comcast Corporation Trust III.
4.9 ** Form of Amended and Restated Declaration of Trust for each
of Comcast Corporation Trust I, Comcast Corporation Trust
II and Comcast Corporation Trust III.
4.10 ** Form of Senior Debt Security.
4.11 ** Form of Subordinated Debt Security.
4.12 Form of Preferred Security (included in Exhibit 4.9).
4.13 ** Form of Preferred Securities Guarantee with respect to
Preferred Securities.
4.14 * Form of Purchase Contract Agreement relating to Purchase
Contracts (to be included in Exhibit 4.15).
4.15 * Form of Unit Agreement.
4.16 ** Form of Warrant Agreement for Warrants Sold Alone.
4.17 Form of Warrant for Warrants Sold Alone (included in
Exhibit 4.16).
4.18 ** Form of Warrant Agreement for Warrants Sold Attached to
Securities.
4.19 Form of Warrant for Warrants Sold Attached to Securities
(included in Exhibit 4.18).
4.20 ** Form of Pledge Agreement.
II-9
<PAGE>
4.21 ** Form of Deposit Agreement.
4.22 Form of Depositary Share (included in Exhibit 4.21).
5.1 ** Opinion of Arthur R. Block, Esquire.
5.2 ** Opinion of Davis Polk & Wardwell.
5.3 ** Opinion of Richards, Layton & Finger.
12.1 ** Statement re: Computation of Ratios of Earnings to Fixed
Charges and to Combined Fixed Charges and Preferred
Dividends.
23.1 ** Consent of Deloitte & Touche LLP.
23.2 ** Consent of KPMG LLP.
23.3 Consent of Arthur R. Block, Esquire (included in
Exhibit 5.1).
23.4 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
23.5 Consent of Richards, Layton & Finger (included in
Exhibit 5.3).
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 Trust Company, as
Trustee under the Senior Indenture.
25.2 ** Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Bankers Trust Company, as Trustee
under the Subordinated Indenture.
25.3 * Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Institutional Trustee for Comcast
Corporation Trust I.
25.4 * Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Institutional Trustee for Comcast
Corporation Trust II.
25.5 * Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Institutional Trustee for Comcast
Corporation Trust III.
- ------------
* To be filed with subsequent Current Report on Form 8-K.
** Filed herewith.
II-10
EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
---------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell $ aggregate principal amount of % Notes Due (the "Offered
Securities"). The Offered Securities are to be issued pursuant to the
provisions of the [specify the 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 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...... ==============
1
<PAGE>
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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. 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 [June __], 1999, and the Prospectus Supplement dated ,
, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Conversion Provisions:
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 Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts and Units) dated [June __], 1999 (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
2
<PAGE>
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.
3
<PAGE>
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 CORPORATION
By:______________________________________
Name:
Title:
4
<PAGE>
UNDERWRITING AGREEMENT
(Warrants)
------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania 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...... ==============
1
<PAGE>
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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. 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 [June __], 1999, and the Prospectus Supplement dated , ,
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:
2
<PAGE>
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 Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts and Units) dated [June __], 1999 (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.
3
<PAGE>
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 CORPORATION
By: ___________________________
Name:
Title:
4
<PAGE>
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania 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 Indenture] [Subordinated 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...... ==============
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<PAGE>
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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. 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 [June __], 1999, and the Prospectus Supplement dated , ,
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 Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts and Units) dated [June __], 1999 (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
2
<PAGE>
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.
3
<PAGE>
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 CORPORATION
By:___________________________________
Name:
Title:
4
<PAGE>
UNDERWRITING AGREEMENT
(Units)
------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania 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 Debt Securities 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").
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<PAGE>
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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. 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 [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
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<PAGE>
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:
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<PAGE>
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 Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts and Units) dated [June __], 1999 (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.
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<PAGE>
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 CORPORATION
By:________________________________
Name:
Title:
5
<PAGE>
COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
[June __], 1999
From time to time, Comcast Corporation, a Pennsylvania 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 ("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 including any additional registration statement filed
by the Company pursuant to Rule 462(b). The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with
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<PAGE>
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 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.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement that (i) each document 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 rules and
regulations of the Commission thereunder and (ii) the Registration Statement
and Prospectus comply in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and do not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations and warranties do not
apply to (a) that part of the Registration Statement which shall constitute
the Statement of Eligibility of the Trustee on Form T-1 (the "Form T-1") and
(b) statements or omissions in the Registration Statement or the Prospectus or
any amendment or supplement thereto based upon information furnished to the
Company in writing by any Underwriter through the Manager expressly for use
therein.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public offering of
the Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered 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 Offered
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than one full business day
2
<PAGE>
prior to the date of delivery, with any transfer taxes payable in connection
with the transfer of the Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission, and there
shall have been no material adverse change in the condition, business
or operations of the Company and its subsidiaries, as a whole, from
that set forth in the Prospectus; and 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 foregoing
effect. Such certificate will also provide that the representations
and warranties of the Company contained herein are true and correct
as of the Closing Date. The officer making 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 Arthur R. Block, Esquire, Senior Deputy General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania 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 where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC,
Inc. (such corporations are together the "specified
subsidiaries" of the Company and each is a "specified
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 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 where the failure to so qualify would
not have a material adverse effect upon the business or
financial condition of the Company and its subsidiaries, as
a whole),
3
<PAGE>
(iii) each of the Senior Indenture dated as of June
__, 1999 (the "Senior Indenture") between the Company and
Bank of Montreal Trust Company, as trustee, and the
Subordinated Indenture dated as of June __, 1999 (the
"Subordinated Indenture") between the Company and Bankers
Trust Company, as trustee has been duly authorized, executed
and delivered by the Company,
(iv) the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company,
(v) the Unit Agreement, if any, has been duly
authorized, executed and delivered by the Company,
(vi) the Offered Securities have been duly authorized by
the Company,
(vii) this Agreement has been duly authorized, executed
and delivered by the Company,
(viii) except as rights to indemnity and contribution
under this Agreement may be limited under applicable law,
the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Senior Indenture, the Subordinated Indenture,
the Offered Securities, the Warrant Agreement and the Unit
Agreement, if any, 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), Pennsylvania, or, to the best
knowledge of such counsel, of any other state or
jurisdiction of the United States or of any foreign
jurisdiction (in which foreign jurisdiction the Company or
any specified subsidiary does business which is material to
the Company and its subsidiaries, as a whole), or the
articles of incorporation or by-laws of the Company or, to
the best knowledge of such counsel, any agreement or other
instrument binding upon the Company, and, except for the
orders of the Commission making the Registration Statement
effective and the Senior Indenture and the Subordinated
Indenture qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") (which have been
obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain
states or foreign jurisdictions (as to which such counsel is
not called upon to express any opinion), no consent,
approval or authorization of any governmental body or agency
of the United States (except with respect to consents,
approvals and authorizations relating specifically to the
cable communications
4
<PAGE>
industry, as to which such counsel is not called upon to
express any opinion), Pennsylvania, or, to the best
knowledge of such counsel, of any other state or
jurisdiction of the United States or of any foreign
jurisdiction is required for the performance by the Company
of its obligations under this Agreement, the Senior
Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement and the Unit Agreement, if
any,
(ix) subject to such qualification as may be set forth
in the Prospectus, the Company and its subsidiaries have,
and are in material 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 business or financial condition of the Company and its
subsidiaries, 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
business or financial condition of the Company and its
subsidiaries, as a whole,
(x) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference
in the Prospectus, (B) in Part II, Item 1 under the caption
"Legal Proceedings" of the Company's most recent Quarterly
Report on Form 10-Q incorporated by reference in the
Prospectus and (C) in the Registration Statement in Item 15,
insofar as such statements constitute a summary 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,
(xi) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its
subsidiaries is subject which is required to be described in
the Registration Statement or the Prospectus and is not so
described or of any contract or other document which is
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as
required,
5
<PAGE>
(xii) the securities into which the Offered Securities
are convertible, initially reserved for issuance upon
conversion of the Offered Securities (the "Underlying
Securities") have been duly authorized and reserved for
issuance, and
(xiii) when the Underlying Securities are issued upon
conversion of the Offered Securities in accordance with the
terms of the Offered Securities, such Underlying Securities
will be validly issued, fully paid and non-assessable and
will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
Such counsel shall also state that no facts have come to his
attention that lead him to believe (1) that the Registration Statement or any
amendments thereto (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel is not called upon to
express any belief), on the date on which it became effective or the date of
filing of the most recent subsequent Annual Report on Form 10-K, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (2) that the Prospectus, as amended or supplemented, if applicable
(except for the financial statements and other financial or statistical data
included or incorporated by reference therein or omitted therefrom, as to
which such counsel is not called upon to express any belief), at the date of
the Underwriting Agreement or at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), as of the dates they were
filed with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
With respect to the preceding paragraph, such counsel may state that
his opinion and belief is based upon his participation in the preparation of
the Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such
counsel may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the
6
<PAGE>
Underwriters. In addition, such counsel may reasonably rely as to questions of
fact on certificates of responsible officers of the Company.
(c) The Manager shall have received on the Closing Date an opinion
of Davis Polk & Wardwell, special counsel for the Company, dated the
Closing Date, to the effect that:
(i) assuming each of the Senior Indenture and the
Subordinated Indenture have been duly authorized, executed
and delivered by the Company and duly executed and delivered
by the respective trustee therero, each of the Senior
Indenture and the Subordinated Indenture is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in
effect and to general equity principles),
(ii) assuming the Warrant Agreement, if any, has been
duly authorized, executed and delivered by the Company and
duly executed and delivered by the Warrant Agent, the
Warrant Agreement, if any, is a valid and binding agreement
of the Company, enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally from time
to time in effect and to general equity principles);
(iii) assuming the Unit Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly
executed and delivered by the Agent, the Unit Agreement, if
any, is a valid and binding agreement of the Company,
enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in
effect and to general equity principles);
(iv) assuming the Offered Securities have been
authorized by the Company, the Offered Securities, when
executed and authenticated in accordance with the provisions
of the relevant Senior Indenture, Subordinated Indenture,
the Warrant Agreement and the Unit Agreement, as the case
may be, and delivered to and paid for (A) by the
Underwriters in accordance with the terms of this Agreement,
and (B) upon exercise of the Warrants pursuant to the
Warrant Agreement, in the case of Warrant Securities, will
be valid and binding obligations of the Company,
7
<PAGE>
enforceable against the Company in accordance with their
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally from time
to time in effect and to general equity principles), and
will be entitled to the benefits of the relevant Senior
Indenture, Subordinated Indenture, the Warrant Agreement and
the Unit Agreement, as the case may be,
(v) each of the Senior Indenture and the Subordinated
Indenture has been duly qualified under the Trust Indenture
Act,
(vi) except as rights to indemnity and contribution
under this Agreement may be limited under applicable law,
the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Senior Indenture, the Subordinated Indenture,
the Offered Securities, the Warrant Agreement and the Unit
Agreement, if any, 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, except for the orders
of the Commission making the Registration Statement
effective and the Senior Indenture and the Subordinated
Indenture qualified under the Trust Indenture Act (which
have been obtained) and such permits or similar
authorizations required under the securities or Blue Sky
laws of certain states or foreign jurisdictions (as to which
such counsel is not called upon to express any opinion), no
consent, approval or authorization of any governmental body
or agency of the United States (except with respect to
consents, approvals and authorizations relating specifically
to the cable communications industry, as to which such
counsel is not called upon to express any opinion), or New
York is required for the performance by the Company of its
obligations under this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant
Agreement and the Unit Agreement, if any, and
(vii) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic
Prospectus under "Description of [the Offered Securities]",
"United States Taxation" and "Plan of Distribution", insofar
as such statements constitute a summary of the legal matters
or documents referred to therein, fairly present the
information called for with respect to such legal matters
and documents.
8
<PAGE>
Such counsel shall also state that no facts have come to the
attention of such counsel that lead them to believe (1) that the Registration
Statement and the Prospectus and any supplements or amendments thereto or the
documents incorporated by reference in the Registration Statement and
Prospectus (except for financial statements and other financial or statistical
data included or incorporated by reference therein and the Form T- 1, as to
which such counsel is not called upon to express any belief) did not comply as
to form in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder; (2) that the Registration Statement
or any amendment thereto (except for the financial statements and other
financial or statistical data included or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which such counsel is not called
upon to express any belief) at the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or (3) that the Prospectus, as amended or
supplemented, if applicable (except for the financial statements and other
financial or statistical data included or incorporated by reference therein or
omitted therefrom, as to which such counsel is not called upon to express any
belief), at the date of the Underwriting Agreement or at the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
With respect to the preceding paragraph, Davis Polk & Wardwell may
state that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(d) The Manager shall have received on the Closing Date an
opinion of Dow, Lohnes and Albertson, PLLC special counsel for the
Company, dated the Closing Date, to the effect that:
(i) no approval of the Federal Communications
Commission (the "FCC") is required in connection with the
issuance and sale of the Offered Securities,
(ii) the execution and delivery of this Agreement, the
Senior Indenture, the Subordinated Indenture, the Warrant
Agreement and the Unit Agreement, if any, by the Company,
the fulfillment of the terms set forth herein and therein by
the Company and the consummation of the transactions
contemplated hereby and thereby by the Company do not
violate any statute, regulation or other law of the United
States relating specifically to the cable communications
industry (except as otherwise
9
<PAGE>
explicitly set forth in the Prospectus) or, to the knowledge
of such counsel, 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 subsidiary, and which
violation would have a material adverse effect on the
business or financial condition of the Company and its
subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and Prospectus [identify sections
describing cable regulatory matters] as updated by the
Company's most recent Quarterly Reports on Form 10-Q
incorporated in the Registration Statement and Prospectus
and as updated by the Prospectus, insofar as they are, or
refer to, statements of federal law or legal conclusions,
have been reviewed by such counsel and present in all
material respects the information called for with respect to
such statements of federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding
pending before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable
communications properties, licenses or authorizations of the
Company and its subsidiaries, or of any cable communications
law or regulation relevant thereto required to be described
in the Registration Statement or Prospectus pursuant to
Regulation S-K promulgated under the Securities Act, which
is not described as required.
(e) The Manager shall have received on the Closing Date an
opinion of Cahill Gordon & Reindel (a partnership including a
professional organization), counsel for the Underwriters, dated the
Closing Date, covering the matters requested by and in form and
substance reasonably satisfactory to the Manager.
(f) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance
satisfactory to the Manager, from Deloitte & Touche LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Registration Statement and the Prospectus.
(g) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the
conditions to Closing listed herein.
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5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated therein
by reference and any supplements and amendments thereto as the
Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of
counsel to the Manager the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its 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 on request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at
the time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such U.S. jurisdictions
as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering the twelve
month period beginning on the first day of the first fiscal quarter
commencing after the date hereof, which shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (which may be accomplished by making
generally available the Company's financial statements in the manner
provided for by Rule 158 of the Securities Act).
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(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with Cuba.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls each 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 caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact 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 alleged untrue statement or omission based
upon information 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 any such Underwriter, if a copy of the Prospectus (as
then amended or supplemented) 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 but without
reference to documents incorporated by reference therein) would have cured the
defect giving rise to such loss, claim, damage or liability.
Each Underwriter agrees 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 such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
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
(hereinafter called the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called 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
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<PAGE>
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 connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Company and such directors, officers
and controlling persons of the Company, such firm shall be designated in
writing by the Company. 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, to the extent provided in the two
immediately preceding paragraphs, the indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is 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.
If the indemnification provided for in the second or third paragraph
of this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities for which indemnification is provided
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, 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 Underwriters from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and of the Underwriters in connection with the statements or
omissions which 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 Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative
fault of the Company and the Underwriters shall be determined by reference to,
among other things, whether the
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<PAGE>
untrue or alleged 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 and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which 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 6, the
Underwriters shall not 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 which the Underwriters have otherwise been required to
pay by reason of such untrue or alleged 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 indemnity and contribution agreement contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriters or any person controlling the Underwriters or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Manager 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, the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on the Nasdaq National 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
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<PAGE>
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.
The Company will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b)
the preparation, printing and distribution of this Agreement, the Senior
Indenture, the Subordinated Indenture, the Warrant Agreement and the Unit
Agreement, if any, and Blue Sky Memorandum, (c) the delivery of the Offered
Securities to the Underwriters, (d) the reasonable fees and disbursements of
the Company's counsel and accountants, (e) the qualification of the Offered
Securities under the applicable state securities or Blue Sky laws in
accordance with Section 5, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with any Blue Sky survey and any legal investment survey, (f) all
fees payable to the National Association of Securities Dealers, Inc. in
connection with the review, if any, of the offering of the Securities, (g) any
fees charged by rating agencies for rating the Offered Securities and (h) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee, in connection with the Senior Indenture, the
Subordinated Indenture and the Offered Securities. Except as specifically
provided elsewhere herein, the Underwriters will pay all of their own costs
and expenses, including without limitation the fees and expenses of their
counsel and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters 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 for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering
contemplated hereunder. This provision shall survive the termination or
cancellation of this Agreement.
8. Defaulting Underwriters. If on the Closing Date any one or more
of the Underwriters shall fail or refuse to purchase Offered Securities that
it has or they have agreed to purchase on such date, and the aggregate amount
of Offered Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Offered Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the amount
of Offered Securities set forth opposite their respective names bears to the
aggregate amount of Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may
15
<PAGE>
specify, to purchase the Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the amount of Offered Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 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.
9. 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.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. 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.
EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Preferred Stock, Depositary Shares, Common Stock)
---------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell the number of shares of its securities identified as Firm
Securities herein (the "Firm Securities"). The Company also proposes to issue
and sell not more than the number of shares of its securities, if any,
identified as Additional Securities herein (the "Additional Securities"), if
and to the extent that we, as Manager of this offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase such
Additional Securities granted to the Underwriters herein. The Firm Securities
and the Additional Securities are hereinafter collectively referred to as 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
Firm Securities set forth below opposite their names at a purchase price of
$[ , per Firm Security (the "Purchase Price").
Number of
Firm Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
<PAGE>
Total...... ==============
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the Underwriters the
Additional Securities, and the Underwriters shall have a one-time right to
purchase, severally and not jointly, up to the number of Additional Securities
set forth below at the Purchase Price [plus accrued dividends, if any, from [ ]
to the date of payment and delivery]. Additional Securities may be purchased as
provided herein solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. If any Additional
Securities are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Securities (subject to such
adjustments to eliminate fractional Offered Securities as you may determine)
that bears the same proportion to the total number of Additional Securities to
be purchased as the amount of Firm Securities set forth opposite the name of
such Underwriter above bears to the total amount of Firm Securities.
The Underwriters will pay for the Firm 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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
Payment for any Additional Securities shall be made at the offices
referred to above at 10:00 A.M. (New York time), 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) as shall be designated in a written notice from us to the Company
of our determination, on behalf of the Underwriters, to purchase an amount,
specified in said notice, of Additional Securities, 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 Securities and of the Option Closing Date may be
given at any time within 30 days after the date of the Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Securities
Securities:
Aggregate Number of Firm Securities:
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<PAGE>
Aggregate Number of Additional Securities:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Lock-Up Securities:
Lock-Up Period:
Additional Provisions:
[If depositary shares are offered, list beneficial ownership of
preferred stock that each depositary share represents and list Deposit
Agreement.]
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 Corporation Underwriting Agreement Standard Provisions
(Preferred Stock, Depositary Shares, Common Stock) dated [June __], 1999 (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.
3
<PAGE>
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 CORPORATION
By:__________________________
Name:
Title:
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<PAGE>
COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK, DEPOSITARY SHARES, COMMON STOCK)
[June __], 1999
From time to time, Comcast Corporation, a Pennsylvania 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 preferred
stock, without par value (the "Preferred Stock"), (b) depositary shares
representing its Preferred Stock (the "Depositary Shares") and (c) its Class A
common stock, $1.00 par value (the "Class A Common Stock") and its Class A
Special common stock, $1.00 par value (the "Class A Special Common Stock", and
together with the Class A Common Stock, the "Common Stock").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Preferred Stock, Depositary Shares and Common Stock (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 including any additional registration statement filed by the Company
pursuant to Rule 462(b). 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
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<PAGE>
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 Company hereby agrees that, without the prior written consent of
the Manager, it will not offer, sell, contract to sell or grant any option to
purchase or otherwise dispose of any shares of the Lock-Up Securities, or any
securities convertible into or exchangeable for Lock-Up Securities, for the
Lock-Up Period, other than (i) the Offered Securities to be sold hereunder,
(ii) any Lock-Up Securities sold upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof or (iii) any
Lock-Up Securities issued pursuant to any stock option or similar employee
compensation plan in effect on the date hereof.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement that (i) each document 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 rules and
regulations of the Commission thereunder and (ii) the Registration Statement
and Prospectus comply in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and do not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations and warranties do not
apply to statements or omissions in the Registration Statement or the
Prospectus or any amendment or supplement thereto based upon information
furnished to the Company in writing by any Underwriter through the Manager
expressly for use therein.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered 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 Offered Securities.
Certificates representing the Offered Securities shall be in definitive form
and registered in such names and in such
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<PAGE>
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 Offered Securities to the Underwriters duly
paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission,
and there shall have been no material adverse change in the
condition, business or operations of the Company and its
subsidiaries, as a whole, from that set forth in the Prospectus; and
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 foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained
herein are true and correct as of the Closing Date. The officer
making 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 Arthur R. Block, Esquire, Senior Deputy General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania 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 where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC,
Inc. (such corporations are together the "specified
subsidiaries" of the Company and each is a "specified
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 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 where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
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<PAGE>
(iii) the Offered Securities have been duly authorized,
and when executed and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable,
(iv) this Agreement has been duly authorized, executed
and delivered by the Company,
(v) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution, delivery and performance of this Agreement by the
Company and the issuance and sale of the Offered Securities
by the Company 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), Pennsylvania, or, to the best knowledge
of such counsel, of any other state or jurisdiction of the
United States or of any foreign jurisdiction (in which
foreign jurisdiction the Company or any specified subsidiary
does business which is material to the Company and its
subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, any agreement or other instrument binding upon the
Company, and, except for the orders of the Commission making
the Registration Statement effective (which have been
obtained) and such permits or similar authorizations required
under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called
upon to express any opinion), no consent, approval or
authorization of any governmental body or agency of the
United States (except with respect to consents, approvals and
authorizations relating specifically to the cable
communications industry, as to which such counsel is not
called upon to express any opinion), Pennsylvania, or, to the
best knowledge of such counsel, of any other state or
jurisdiction of the United States or of any foreign
jurisdiction is required for the performance of this
Agreement by the Company, or the issuance and sale of the
Offered Securities by the Company,
(vi) subject to such qualification as may be set forth in
the Prospectus, the Company and its subsidiaries have, and
are in material 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
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<PAGE>
effect on the business or financial condition of the Company
and its subsidiaries, 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 business or financial condition of the Company and its
subsidiaries, as a whole,
(vii) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference
in the Prospectus, (B) in Part II, Item 1 under the caption
"Legal Proceedings" of the Company's most recent Quarterly
Report on Form 10-Q incorporated by reference in the
Prospectus and (C) in the Registration Statement in Item 15,
insofar as such statements constitute a summary 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,
(viii) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries
is subject which is required to be described in the
Registration Statement or the Prospectus and is not so
described or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required,
(ix) the security into which the Offered Securities are
convertible, initially reserved for issuance upon conversion
of the Offered Securities (the "Underlying Securities") have
been duly authorized and reserved for issuance, and
(x) when the Underlying Securities are issued upon
conversion of the Offered Securities in accordance with the
terms of the Offered Securities, such Underlying Securities
will be validly issued, fully paid and non-assessable and
will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom, as to
which such counsel is not called upon to express any belief), on the date on
which it became effective or the date of filing of the most recent subsequent
Annual Report on Form 10-K, contained an untrue statement of a
5
<PAGE>
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; (2) that the
Prospectus, as amended or supplemented, if applicable (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), at the date of the Underwriting Agreement or at
the Closing Date, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; or (3) that the documents incorporated by reference in
the Prospectus (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel is not called upon to express any belief),
as of the dates they were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that
his opinion and belief is based upon his participation in the preparation of
the Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the Company,
dated the Closing Date, to the effect that:
(i) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution, delivery and performance of this Agreement by the
Company and the issuance and sale of the Offered Securities
by the Company 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, except for the orders
of the Commission making the Registration Statement effective
(which have been obtained) and such permits or similar
authorizations required under the securities or Blue Sky laws
of certain states or foreign jurisdictions (as to which such
counsel is
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<PAGE>
not called upon to express any opinion), no consent, approval
or authorization of any governmental body or agency of the
United States (except with respect to consents, approvals and
authorizations relating specifically to the cable
communications industry, as to which such counsel is not
called upon to express any opinion), or New York is required
for the performance of this Agreement by the Company, or the
issuance and sale of the Offered Securities by the Company,
and
(ii) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic
Prospectus under "Description of [the Offered Securities]",
"United States Taxation" and "Plan of Distribution", insofar
as such statements constitute a summary of the legal matters
or documents referred to therein, fairly present the
information called for with respect to such legal matters and
documents.
Such counsel shall also state that no facts have come to the attention
of such counsel that lead them to believe (1) that the Registration Statement
and the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein, as to which such counsel is not called upon
to express any belief) did not comply as to form in all material respects with
the Securities Act and the rules and regulations of the Commission thereunder;
(2) that the Registration Statement or any amendment thereto (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief) at the date of the
Underwriting Agreement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (3) that the Prospectus, as
amended or supplemented, if applicable (except for the financial statements and
other financial or statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel is not called upon to
express any belief), at the date hereof or at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, Davis Polk & Wardwell may
state that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
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<PAGE>
(d) The Manager shall have received on the Closing Date an
opinion of Dow, Lohnes and Albertson, PLLC special counsel for the
Company, dated the Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission
(the "FCC") is required in connection with the issuance and
sale of the Offered Securities,
(ii) the execution and delivery of this Agreement, by the
Company, the fulfillment of the terms set forth herein by the
Company and the consummation of the transactions contemplated
hereby by the Company do not violate any statute, regulation
or other law of the United States relating specifically to
the cable communications industry (except as otherwise
explicitly set forth in the Prospectus) or, to the knowledge
of such counsel, 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 subsidiary, and which
violation would have a material adverse effect on the
business or financial condition of the Company and its
subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and Prospectus [identify sections
describing cable regulatory matters] as updated by the
Company's most recent Quarterly Reports on Form 10-Q
incorporated in the Registration Statement and Prospectus and
as updated by the Prospectus, insofar as they are, or refer
to, statements of federal law or legal conclusions, have been
reviewed by such counsel and present in all material respects
the information called for with respect to such statements of
federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding pending
before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable communications
properties, licenses or authorizations of the Company and its
subsidiaries, or of any cable communications law or
regulation relevant thereto required to be described in the
Registration Statement or Prospectus pursuant to Regulation
S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an
opinion of Cahill Gordon & Reindel (a partnership including a
professional organization),
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<PAGE>
counsel for the Underwriters, dated the Closing Date, covering the
matters requested by and in form and substance reasonably satisfactory
to the Manager.
(f) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance
satisfactory to the Manager, from Deloitte & Touche LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Registration Statement and the Prospectus.
(g) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the
conditions to Closing listed herein.
The several obligations of the Underwriters to purchase Additional
Securities hereunder are subject to the delivery to the Manager on the Option
Closing Date of such opinions, certificates and documents as are contemplated
for the Closing of the Firm Securities in this Section 4.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto as the Manager
may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of
counsel to the Manager the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its expense, to the Underwriters
and to the dealers (whose
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<PAGE>
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 on request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances existing at the time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such U.S. jurisdictions
as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering the twelve month
period beginning on the first day of the first fiscal quarter
commencing after the date hereof, which shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (which may be accomplished by making
generally available the Company's financial statements in the manner
provided for by Rule 158 of the Securities Act).
(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with Cuba.
6. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls each
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 caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
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 alleged untrue statement or omission based upon information
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 any such Underwriter, if a copy of the Prospectus (as then amended
or supplemented) 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 but without reference to
documents incorporated by reference therein) would have cured the defect giving
rise to such loss, claim, damage or liability.
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<PAGE>
Each Underwriter agrees 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 such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
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
(hereinafter called the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called 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 connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Company and such directors, officers and
controlling persons of the Company, such firm shall be designated in writing by
the Company. 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, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional
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<PAGE>
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph
of this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities for which indemnification is provided
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, 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 Underwriters from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and of the Underwriters in connection with the statements or
omissions which 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 Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged 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 and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which 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 6, the Underwriters
shall not 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 which the Underwriters have otherwise been required to pay by reason of
such untrue or alleged 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.
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The indemnity and contribution agreement contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriters or any person controlling the Underwriters or by or on
behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Manager 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 [or the Option Closing Date, as the case may be,]
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, the American Stock Exchange,
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on the Nasdaq National
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.
The Company will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the
preparation, printing and distribution of this Agreement and Blue Sky
Memorandum, (c) the delivery of the Offered Securities to the Underwriters, (d)
the reasonable fees and disbursements of the Company's counsel and accountants,
(e) the qualification of the Offered Securities under the applicable state
securities or Blue Sky laws in accordance with Section 5, including filing fees
and reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with any Blue Sky survey and any legal
investment survey, (f) all fees payable to the National Association of
Securities Dealers, Inc. in connection with the review, if any, of the offering
of the Securities and (g) any fees charged by rating agencies for the rating of
the Offered Securities. Except as specifically provided elsewhere herein, the
Underwriters will pay all of their own costs and expenses, including without
limitation the fees and expenses of their counsel and the expenses of selling
presentations.
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If this Agreement shall be terminated by the Underwriters 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 for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or cancellation of this
Agreement.
8. 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 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 Offered Securities
set forth opposite their respective names bears to the aggregate amount of
Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 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 [or the Option Closing Date, as the case may be,] 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 [or the Option Closing Date, as the case may be,] 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.
9. 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.
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10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. 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.
EXHIBIT 1.3
UNDERWRITING AGREEMENT
(Preferred Securities)
------- --, ----
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation 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 the number of shares of its
Guaranteed Trust Preferred Securities identified as Additional Preferred
Securities herein (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 Corporation (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 [___] 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 Bankers Trust Company, as Trustee, acting pursuant to a
Subordinated Indenture dated as of June __, 1999 shall provide for the issuance
of $[___] principal amount of the Company's [__]% Subordinated [Deferrable
Interest] Debt Securities due [____] (the "Subordinated Debt Securities"),
(iii) the Company shall sell such Subordinated Debt Securities to the Issuer
Trust and the Issuer Trust shall purchase such Subordinated Debt Securities
with proceeds of the sale of the
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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 [ ] 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"):
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 the number of Additional
Preferred Securities set forth below at the Purchase Price [plus accrued
dividends, if any, from [ ] to the date of payment and delivery.] 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
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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 , , or at such other time,
not later than 5:00 p.m. (New York time) on , , as shall be designated in
writing by the Underwriters and the Company. 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 at
10:00 A.M. (New York time) 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) as 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, 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 the Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated [June__], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Preferred Securities
Designation of the Series of the Offered Preferred Securities:
Issuer of Offered Preferred Securities: Comcast Corporation Trust [__]
Aggregate Number of Firm Preferred Securities:
Aggregate Number of Additional Preferred Securities:
Price to Public:
Purchase Price:
Underwriters' Compensation per Offered Preferred Security:
Closing Date:
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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 [June __], 1999
relating to the Preferred Securities of Comcast Corporation Trust I, Comcast
Corporation Trust II and Comcast Corporation Trust III (fully and
unconditionally guaranteed to the extent described therein by Comcast
Corporation (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.
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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 CORPORATION
By:
------------------------------------
Name:
Title:
COMCAST CORPORATION TRUST [ ]
By:
------------------------------------
Name:
Title: Regular Trustee
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COMCAST CORPORATION
COMCAST CORPORATION TRUST I
COMCAST CORPORATION TRUST II
COMCAST CORPORATION TRUST III
PREFERRED SECURITIES
(Fully and unconditionally guaranteed, to the extent described herein, by
Comcast Corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
[June __], 1999
From time to time, Comcast Corporation, a Delaware corporation (the
"Company"), may, together with any one of Comcast Corporation Trust I, Comcast
Corporation Trust II, Comcast Corporation 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
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amount of its Subordinated [Deferrable Interest] Debt Securities (the
"Subordinated Debt Securities") equal to the aggregate liquidation amount of
the Preferred Securities and Common Securities issued by such Issuer Trust. The
Subordinated Debt Securities will be issued under a Subordinated Indenture to
be dated as of June __, 1999 between the Company and Bankers Trust Company, as
trustee (the "Debt Securities Trustee") (as amended and supplemented from time
to time the "Subordinated 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 Subordinated 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 including any additional registration statement filed by the Company
pursuant to Rule 462(b). 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
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date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
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 that (i) each
document 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 rules and regulations of the
Commission thereunder and (ii) the Registration Statement and Prospectus comply
in all material respects with the Securities Act and the rules and regulations
of the Commission thereunder and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that the
foregoing representations and warranties do not apply to (a) that part of the
Registration Statement which shall constitute the Statement of Eligibility of
the Trustee on Form T-1 (the "Form T-1") and (b) statements or omissions in the
Registration Statement or the Prospectus or any amendment or supplement thereto
based upon information furnished to the Company in writing by any Underwriter
through the Manager expressly for use therein.
2. 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 Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered 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 Offered 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 Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission,
and there shall have been no material adverse change in the
condition, business or operations of the Company and its
subsidiaries, as a whole, or, with respect to an offering of
Preferred Securities, the
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Issuer Trust, from that set forth in the Prospectus; and 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
foregoing effect. Such certificate will also provide that the
representations and warranties of the Company and, in the case of an
offering of Preferred Securities, the Issuer Trust, contained herein
are true and correct as of the Closing Date. The officer making 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 Arthur R. Block, Esquire, Senior Deputy General Counsel of
the Company, dated the Closing Date to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania 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 where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC,
Inc. (such corporations are together the "specified
subsidiaries" of the Company and each is a "specified
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 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 where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(iii) the Subordinated Debt Securities have been duly
authorized by the Company,
(iv) the Guarantee has been duly authorized, executed and
delivered by the Company,
(v) this Agreement has been duly authorized, executed and
delivered by the Company,
(vi) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution and
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delivery by the Issuer Trust of, and the performance of the
Issuer Trust's obligations under, this Agreement and the
execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the
Subordinated Indenture, the Trust Agreement and the Guarantee
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), Pennsylvania, or, to the best knowledge of such
counsel, of any other state or jurisdiction of the United
States or of any foreign jurisdiction (in which foreign
jurisdiction the Company or any specified subsidiary does
business which is material to the Company and its
subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, any agreement or other instrument binding upon the
Company or the Issuer Trust, and, except for the orders of
the Commission making the Registration Statement effective
and the Subordinated Indenture qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act")
(which have been obtained) and such permits or similar
authorizations required under the securities or Blue Sky laws
of certain states or foreign jurisdictions (as to which such
counsel is not called upon to express any opinion), no
consent, approval or authorization of any governmental body
or agency of the United States (except with respect to
consents, approvals and authorizations relating specifically
to the cable communications industry, as to which such
counsel is not called upon to express any opinion),
Pennsylvania, or, to the best knowledge of such counsel, of
any other state or jurisdiction of the United States or of
any foreign jurisdiction is required for the performance by
the Issuer Trust of its obligations under this Agreement or
by the Company of its obligations under this Agreement, the
Subordinated Indenture, the Trust Agreement and the
Guarantee,
(vii) subject to such qualification as may be set forth in
the Prospectus, the Company and its subsidiaries have, and
are in material 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 business or financial condition of the Company and its
subsidiaries, 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
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<PAGE>
the business or financial condition of the Company and its
subsidiaries, as a whole,
(viii) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference
in the Prospectus, (B) in Part II, Item 1 under the caption
"Legal Proceedings" of the Company's most recent Quarterly
Report on Form 10-Q incorporated by reference in the
Prospectus and (C) in the Registration Statement in Item 15,
insofar as such statements constitute a summary 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
(ix) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries or the Issuer Trust is a
party or to which any of the properties of the Company or any
of its subsidiaries is subject which is required to be
described in the Registration Statement or the Prospectus and
is not so described or of any contract or other document
which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as
required.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief),
on the date on which it became effective or the date of filing of the most
recent subsequent Annual Report on Form 10-K, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (2) that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), at the date of the
Underwriting Agreement or at the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), as of the dates they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a
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<PAGE>
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that
his opinion and belief is based upon his participation in the preparation of
the Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the Company,
dated the Closing Date to the effect that:
(i) assuming the Subordinated Debt Securities have been
duly authorized by the Company, the Subordinated Debt
Securities, when executed and authenticated in accordance with
the provisions of the relevant Subordinated Indenture, and
delivered to and paid for as described in the Prospectus will be
entitled to the benefits of the Subordinated Indenture, and will
be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in
effect and to general equity principles),
(ii) assuming the Guarantee has been duly authorized,
executed and delivered by the Company, the Guarantee is a valid
and binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally from
time to time in effect and to general equity principles),
(iii) the Subordinated Indenture has been duly qualified
under the Trust Indenture Act,
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(iv) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution and delivery by the Issuer Trust of, and the
performance of its obligations under, this Agreement and the
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the
Subordinated Indenture, the Trust Agreement and the Guarantee
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,
except for the orders of the Commission making the Registration
Statement effective and the Subordinated Indenture qualified
under the Trust Indenture Act (which have been obtained) and
such permits or similar authorizations required under the
securities or Blue Sky laws of certain states or foreign
jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of
any governmental body or agency of the United States (except
with respect to consents, approvals and authorizations relating
specifically to the cable communications industry, as to which
such counsel is not called upon to express any opinion), or New
York is required for the performance by the Issuer Trust of its
obligations under this Agreement or by the Company of its
obligations under this Agreement, the Subordinated Indenture,
the Trust Agreement and the Guarantee,
(v) 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, and
(vi) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic Prospectus
under "Description of [the Offered Securities]", "United States
Taxation" and "Plan of Distribution", insofar as such statements
constitute a summary of the legal matters or documents referred
to therein, fairly present the information called for with
respect to such legal matters and documents.
Such counsel shall also state that no facts have come to the attention
of such counsel that lead them to believe (1) that the Registration Statement
and the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein and the Form T-1,
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as to which such counsel is not called upon to express any belief) did not
comply as to form in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder; (2) that the Registration
Statement or any amendment thereto (except for the financial statements and
other financial or statistical data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which such counsel is not
called upon to express any belief) at the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (3) that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel is not called upon to express any belief),
at the date of the Underwriting Agreement or at the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, Davis Polk & Wardwell may
state that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(d) The Manager shall have received on the Closing Date an
opinion of Dow, Lohnes and Albertson, PLLC special counsel for the
Company, dated the Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission
(the "FCC") is required in connection with the issuance and
sale of the Offered Securities,
(ii) the execution and delivery by the Issuer Trust of
this Agreement and the execution and delivery by the Company
of this Agreement, the Subordinated Indenture, the Trust
Agreement and the Guarantee and the fulfillment of the terms
set forth herein by the Issuer Trust and of the terms set
forth herein and in the Subordinated Indenture, the Trust
Agreement and the Guarantee by the Company and the
consummation of the transactions contemplated hereby by the
Issuer Trust and of the transactions contemplated hereby and
under the Subordinated Indenture, the Trust Agreement and
Guarantee by the Company do not violate any statute,
regulation or other law of the United States relating
specifically to the cable communications industry (except as
otherwise explicitly set forth in the Prospectus) or, to the
knowledge of such
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counsel, 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
Issuer Trust, the Company or any of its subsidiaries, and
which violation would have a material adverse effect on the
business or financial condition of the Issuer Trust or
Company and its subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and Prospectus [identify sections
describing cable regulatory matters] as updated by the
Company's most recent Quarterly Reports on Form 10-Q
incorporated in the Registration Statement and Prospectus and
as updated by the Prospectus, insofar as they are, or refer
to, statements of federal law or legal conclusions, have been
reviewed by such counsel and present in all material respects
the information called for with respect to such statements of
federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding pending
before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable communications
properties, licenses or authorizations of the Company and its
subsidiaries, or of any cable communications law or
regulation relevant thereto required to be described in the
Registration Statement or Prospectus pursuant to Regulation
S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an
opinion of Cahill Gordon & Reindel (a partnership including a
professional organization), counsel for the Underwriters, dated the
Closing Date, covering the matters requested by and in form and
substance reasonably satisfactory to the Manager.
(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 and has the trust power
and authority to conduct its business, all as described in
the Registration Statement and Prospectus;
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(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 this Agreement by
the Issuer Trust, and the performance by the Issuer Trust of
its obligations hereunder, 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 this
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Agreement, the consummation by the Issuer Trust of the
transactions contemplated hereby and compliance by the Issuer
Trust with its obligations hereunder 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 Offered Preferred Security Holders (other than
those Offered Preferred 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 each case in form and substance
satisfactory to the Manager, from Deloitte & Touche LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and
12
<PAGE>
certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus.
(h) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the
conditions to Closing listed herein.
The several obligations of the Underwriters to purchase Additional
Preferred Securities hereunder are subject to the delivery to the Manager on
the Option Closing Date of such opinions, certificates and documents as are
contemplated for the Closing of the Firm Preferred Securities.
5. 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 to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated therein
by reference and any supplements and amendments thereto as the
Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of
counsel to the Manager the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its 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 on request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at
the time, be misleading.
13
<PAGE>
(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 U.S. jurisdictions as the Manager
shall reasonably request.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering the
twelve month period beginning on the first day of the first fiscal
quarter commencing after the date hereof, which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (which may be accomplished
by making generally available the Company's financial statements in
the manner provided for by Rule 158 of the Securities Act).
(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with Cuba.
[(g) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date [or the
Option Closing Date, as the case may be], 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.]
6. 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 each 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 caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact 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 alleged untrue statement or
omission based upon information 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 any such Underwriter,
if a copy of the Prospectus (as then amended or supplemented) 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 but
14
<PAGE>
without reference to documents incorporated by reference therein) would have
cured the defect giving rise to such loss, claim, damage or liability.
Each Underwriter agrees to indemnify and hold harmless the Issuer
Trust, the Issuer Trustees, the Administrators, the Company, the Company's
directors, the Company's officers who sign the Registration Statement and each
person, if any, who controls the Issuer Trust or 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 and the Issuer
Trust to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company or the Issuer Trust in writing by
such Underwriter through the Manager expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
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
(hereinafter called the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called 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 connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, the Company's directors, the Company's officers
who sign the Registration Statement and controlling persons of the Issuer Trust
and Company, such firm shall be designated in writing by the Issuer Trust and
the Company. 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, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss
15
<PAGE>
or liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is 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.
If the indemnification provided for in the second or third paragraph
of this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities for which indemnification is provided
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, 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 of the Underwriters on the other hand in
connection with the statements or omissions which 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 by the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the Issuer Trust bear
to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. 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 alleged
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 and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which 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 6, the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the
16
<PAGE>
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged 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 indemnity and contribution agreement contained in this Section 6
and the representations and warranties of the Company and the Issuer Trust
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of the Underwriters or any person controlling the
Underwriters or by or on behalf of the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, the Company's officers or directors or any person
controlling the Issuer Trust or Company and (iii) acceptance of and payment for
any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Manager 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 [or the Option Closing Date, as the case may be,]
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, the American Stock Exchange,
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on the Nasdaq National
Market or, in the case of an offering of Preferred Securities, the trading of
any securities of the Issuer Trust shall have been suspended on any exchange or
in the 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.
The Company and the Issuer Trust will pay and bear all costs and
expenses incident to the performance of their obligations under this Agreement,
including (a) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed
and as amended, the preliminary prospectuses and the Prospectus and any
amendments or supplements thereto, and the cost of furnishing copies thereto to
the Underwriters, (b) the preparation, issuance and delivery of the Offered
Securities, (c) the reasonable fees and disbursements of the Company's counsel
and accountants, of the Issuer Trust's counsel and of the Issuer Trustees and
their counsel, (d) the qualification of the Offered Securities [and, in the
case of an offering of
17
<PAGE>
Preferred Securities, the Preferred Securities and the Guarantees] under the
applicable state securities or Blue Sky laws in accordance with Section 5,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with any Blue Sky survey
and any legal investment survey, (e) all fees payable to the National
Association of Securities Dealers, Inc. in connection with the review, if any,
of the offering of the Securities and (f) any fees charged by rating agencies
for the rating of the Offered Securities. Except as specifically provided
elsewhere herein, the Underwriters will pay all of their own costs and
expenses, including without limitation the fees and expenses of their counsel
and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters 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 Trust will
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering contemplated hereunder. This
provision shall survive the termination or cancellation of this Agreement.
8. 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 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 Preferred Securities
set forth opposite their respective names bears to the aggregate amount of
Preferred Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered 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 amount of Offered Preferred Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such amount
of Offered Preferred Securities without the written consent of such
Underwriter. If on the Closing Date [or the Option Closing Date, as the case
may be,] any Underwriter or Underwriters shall fail or refuse to purchase
Preferred Securities and the aggregate amount of Preferred Securities with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Preferred Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Preferred
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
18
<PAGE>
Underwriter, the Company or the Trust Issuer. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date [or
the Option Closing Date, as the case may be,] 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.
9. 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.
10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. 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.
19
EXHIBIT 4.1
================================================================================
COMCAST CORPORATION
and
BANK OF MONTREAL TRUST COMPANY, Trustee
INDENTURE
Dated as of June 15, 1999
------------------
Senior Debt Securities
================================================================================
<PAGE>
TABLE OF CONTENTS
--------------
PAGE
----
ARTICLE 1
SECTION 1.01 Certain Terms Defined.............................................1
ARTICLE 2
SECTION 2.01 Forms Generally...................................................7
SECTION 2.02 Form of Trustee's Certification of Authentication.................8
SECTION 2.03 Amount Unlimited; Issuable in Series..............................8
SECTION 2.04 Authentication and Delivery of Securities........................10
SECTION 2.05 Execution of Securities..........................................11
SECTION 2.06 Certificate of Authentication....................................12
SECTION 2.07 Denomination and Date of Securities; Payments of Interest. ......12
SECTION 2.08 Registration, Transfer and Exchange..............................13
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities........14
SECTION 2.10 Cancellation of Securities; Destruction Thereof..................15
SECTION 2.11 Temporary Securities.............................................15
SECTION 2.12 Computation of Interest..........................................16
ARTICLE 3
SECTION 3.01 Payment of Principal and Interest................................16
SECTION 3.02 Offices for Payments, etc........................................16
SECTION 3.03 Paying Agents....................................................16
SECTION 3.04 Certificate of the Issuer........................................18
SECTION 3.05 Securityholders Lists............................................18
SECTION 3.06 Reports by the Issuer............................................18
SECTION 3.07 Corporate Existence..............................................19
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations................19
SECTION 3.09 Further Assurances...............................................19
ARTICLE 4
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................20
<PAGE>
PAGE
----
SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt........................................................22
SECTION 4.03 Application of Proceeds..........................................25
SECTION 4.04 Suits for Enforcement............................................26
SECTION 4.05 Restoration of Rights on Abandonment of Proceedings..............26
SECTION 4.06 Limitations on Suits by Securityholder...........................26
SECTION 4.07 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................27
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default...........................................27
SECTION 4.09 Control by Securityholders.......................................28
SECTION 4.10 Waiver of Past Defaults..........................................28
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.......................................28
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................29
ARTICLE 5
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default............................................29
SECTION 5.02 Certain Rights of the Trustee....................................31
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof...............32
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.........33
SECTION 5.05 Moneys Held by Trustee...........................................33
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim. .....................................................33
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc...........34
SECTION 5.08 Persons Eligible for Appointment as Trustee. ....................34
SECTION 5.09 Resignation and Removal; Appointment of Successor
Trustee.....................................................34
SECTION 5.10 Acceptance of Appointment by Successor...........................36
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee.........................................37
SECTION 5.12 Reports to the Trustee...........................................37
ii
<PAGE>
PAGE
----
ARTICLE 6
SECTION 6.01 Evidence of Action Taken by Securityholders......................38
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date. ...................................38
SECTION 6.03 Holders to be Treated as Owners..................................39
SECTION 6.04 Securities Owned by Issuer Deemed Not Outstanding................39
SECTION 6.05 Right of Revocation of Action Taken..............................40
ARTICLE 7
SECTION 7.01 Supplemental Indentures Without Consent of
Securityholders.............................................40
SECTION 7.02 Supplemental Indentures With Consent of Securityholders..........42
SECTION 7.03 Effect of Supplemental Indenture.................................44
SECTION 7.04 Documents to Be Given to Trustee.................................44
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures..................................................44
ARTICLE 8
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms...................45
SECTION 8.02 Successor Corporation Substituted................................45
ARTICLE 9
SECTION 9.01 Defeasance Within One Year of Payment............................46
SECTION 9.02 Defeasance.......................................................47
SECTION 9.03 Covenant Defeasance..............................................49
SECTION 9.04 Application of Trust Money.......................................50
SECTION 9.05 Repayment to Issuer..............................................50
ARTICLE 10
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability.....................51
iii
<PAGE>
PAGE
----
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.............................................51
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture.............51
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders.............................................51
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.....................................52
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays.................53
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.......................................53
SECTION 10.08 New York Law to Govern..........................................53
SECTION 10.09 Counterparts....................................................54
SECTION 10.10 Effect of Headings..............................................54
ARTICLE 11
SECTION 11.01 Applicability of Article........................................54
SECTION 11.02 Notice of Redemption; Partial Redemptions.......................54
SECTION 11.03 Payment of Securities Called for Redemption.....................55
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................56
SECTION 11.05 Mandatory and Optional Sinking Funds............................56
SECTION 11.06 Conversion Arrangement on Call For Redemption...................59
ARTICLE 12
SECTION 12.01 Applicability of Article........................................60
SECTION 12.02 Right of Securityholders to Convert Securities..................60
SECTION 12.03 Issuance of Shares of Capital Stock on Conversion...............61
SECTION 12.04 No Payment or Adjustment for Interest or Dividends..............62
SECTION 12.05 Adjustment of Conversion Rate...................................63
SECTION 12.06 No Fractional Shares to Be Issued...............................67
SECTION 12.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance..................................68
SECTION 12.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action.....................................68
SECTION 12.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities..................................................69
SECTION 12.10 Compliance with Governmental Requirements.......................70
iv
<PAGE>
SECTION 12.11 Payment of Taxes upon Certificates for Shares Issued
Upon Conversion.............................................70
SECTION 12.12 Trustee's Duties with Respect to Conversion Provisions..........70
<PAGE>
THIS INDENTURE, dated as of June 15, 1999 between COMCAST CORPORATION, a
Pennsylvania corporation (the "Issuer"), and BANK OF MONTREAL TRUST COMPANY, a
New York banking corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences 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, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall 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. All accounting terms used herein and not expressly
defined shall have the
<PAGE>
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. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Authorized Newspaper" means a newspaper in the English language or in
an official language of the country of publication, customarily printed on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. If, because of temporary suspension of
publication or general circulation of any newspaper or for any other reason, it
is impossible or impracticable to make any publication of any notice required by
this Indenture in the manner herein provided, such publication or other notice
in lieu thereof which is made at the written direction of the Issuer by the
Trustee shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" means, with respect to any Person, including the Issuer,
any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital stock or
equity, including, without limitation, all Common Stock and Preferred Stock.
"Class A Common Stock" means the Class A Common Stock, $1.00 par value,
of the Issuer.
"Class A Special Common Stock" means the Class A Special Common Stock,
$1.00 par value, of the Issuer.
"Closing Price" on any day when used with respect to any class of
Capital Stock means (i) if the stock is then listed or admitted to trading on a
national securities exchange in the United States, the last reported sale price,
regular way, for the stock as reported in the consolidated transaction or other
reporting system for securities listed or traded on such exchange, or (ii) if
the stock is listed on the
2
<PAGE>
National Association of Securities Dealers, Inc. Automated Quotations System
National Market System (the "NASDAQ National Market System"), the last reported
sale price, regular way, for the stock, as reported on such list, or (iii) if
the stock is not so admitted for trading on any national securities exchange or
the NASDAQ National Market System, the average of the last reported closing bid
and asked prices reported by the National Association of Securities Dealers,
Inc. Automated Quotations System as furnished by any member in good standing of
the National Association of Securities Dealers, Inc., selected from time to time
by the Issuer for that purpose or as quoted by the National Quotation Bureau
Incorporated. In the event that no such quotation is available for any day, the
Board of Directors shall be entitled to determine in good faith the current
market price on the basis of such quotations as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Wall Street Plaza, 88 Pine Street, 19th Floor,
New York, New York, 10005, Attention: Corporate Trust Department.
"Default" means any Event of Default as defined in Section 4.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Event of Default" means any event or condition specified as such in
Section 4.01.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
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supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article 5) Comcast
Corporation, a Pennsylvania corporation, and, subject to Article 8, its
successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.05.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date 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" means any Security that 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 4.01.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee 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 Issuer) or
shall have been set aside, segregated and held in trust by the Issuer
for the holders of such Securities (if the Issuer shall act as its own
paying agent),
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provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series 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 4.01.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Registered Security" means any Security registered on the register
maintained by the Issuer pursuant to Section 2.08.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee
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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" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of all votes
represented by all classes of outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 5, shall also include
any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency of 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, 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.
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"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Wholly-Owned" is defined to mean, with respect to any Subsidiary of any
person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, 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
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors 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 imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. The Issuer
shall furnish any such legends to the Trustee in writing.
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.
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SECTION 2.02 Form of Trustee's Certification 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 herein and
referred to in the within-mentioned Indenture.
BANK OF MONTREAL TRUST
COMPANY,
as Trustee
By:
-----------------------------------
Authorized Signatory
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. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is
payable;
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(e) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.02);
(f) 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 Issuer, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices
at which and the period or periods within 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;
(h) the obligation, if any, of the Issuer to permit the conversion
of the Securities of such series into Class A Common Stock or Class A
Special Common Stock, or a combination thereof, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period and any other provision in addition to or in lieu of those set
forth in this Indenture relative to such obligation);
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) 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
4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(l) any trustees, authenticating or paying agents, transfer agents
or registrar or any other agents with respect to the Securities of such
series.
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.
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SECTION 2.04 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
Chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. 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 5.01) shall be fully protected in
relying upon:
(a) a certified copy of any resolution or resolutions of the Board
of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause 2.04(b) below;
(b) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any, and the
documentation required to be delivered pursuant to Section 7.04;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.01 and 2.03, respectively
and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance with Section
10.05, to the effect that
(i) that the form or forms and 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
2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) that such Securities, when authenticated and delivered by
the Trustee and issued by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms;
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(iii) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have been
complied with; and
(iv) covering 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 by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability.
SECTION 2.05 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) by its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.06 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so
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authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
SECTION 2.07 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
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 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 plan as the officers of
the Issuer executing the same may determine as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08 Registration, Transfer and Exchange. The Issuer will keep
or cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.02 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being
converted into
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such form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.02, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.02, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption, conversion or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
mailing or first publication of notice of redemption of Securities of such
series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be
redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
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and shall be surrendered to the Trustee, the Issuer shall execute, and 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 or defaced Security. If the Holder of any Security claims that
the Security has been lost, destroyed or wrongfully taken, the Issuer shall
execute, and 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 lost, destroyed or wrongfully taken Security, if the
applicant so requests before the Issuer has notice that the Security has been
acquired by a protected purchaser, and the applicant furnishes to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and the applicant satisfies other reasonable requirements imposed
by the Issuer.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee and its counsel) 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 defaced or be destroyed, lost or
stolen, the Issuer 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 or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or wrongful taking, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the
Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
wrongful taking of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or wrongfully taken Security
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in)
this Indenture equally and proportionately with any and all other Securities of
such series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or wrongfully taken Securities
and shall preclude any and all other rights or remedies.
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SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, conversion, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall dispose of canceled Securities held by it in
accordance with the record retention policies of the Trustee in effect from time
to time and, if such cancelled certificates are destroyed, shall deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.12 Computation of Interest. Except as otherwise specified in
the Securities of a series, interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.01 Payment of Principal and Interest. The Issuer 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 interest on, each of
the Securities of such series at the place or places, 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 or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.02 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in the Borough of Manhattan, The
City of New York an office or agency (a) where the Securities may be presented
for payment, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, (c) where notices and
demands to or upon the Issuer in respect of the Securities or of this Indenture
may be served and (d) for Securities of each series that is convertible, where
such Securities may be presented for conversion. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.03, the Issuer hereby initially designates the Corporate Trust Office
of Trustee as the office to be maintained by it for each such purpose. In case
the Issuer shall fail to so designate or maintain any such office or agency 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
Corporate Trust Office.
SECTION 3.03 Paying Agents. Whenever the Issuer 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 provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer 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 or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any
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payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the
failure referred to in clause 3.03(b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such 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 or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more paying agents for any series
of Securities, it will, on or before each due date of the principal of or
interest on any Securities of such series, deposit with the paying agent or
agents for the Securities of such series a sum, by 10:00 a.m. New York time in
immediately available funds on the payment date, sufficient to pay the principal
or interest so becoming due with respect to the Securities of such series, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee in writing of any failure so to act.
Anything in this section to the contrary notwithstanding, the Issuer 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 Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this section is subject to the provisions
of Section 9.05.
SECTION 3.04 Certificate of the Issuer. Within 120 days after the close
of the fiscal year ended December 31, 1999, and within 120 days after the close
of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief
certificate
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(which need not comply with Section 10.05) from the principal executive,
financial or accounting officer of the Issuer as to his or her knowledge of the
Issuer's 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).
At the time such certificate is filed, the Issuer will also file with
the Trustee a letter or statement of the independent accountants who shall have
certified the financial statements of the Issuer for its preceding fiscal year
in connection with the annual report of the Issuer to its shareholders for such
year to the effect that, in making the examination necessary for certification
of such financial statements, they have obtained no knowledge of any default by
the Issuer in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, which default remains uncured at the date
of such letter or statement, or, if they shall have obtained knowledge of any
such uncured default, specifying in such letter or statement such default or
defaults and the nature and status thereof, it being understood that such
accountants shall not be liable directly or indirectly for failure to obtain
knowledge of any such default or defaults, and that nothing contained in this
Section 3.04 shall be construed to require such accountants to make any
investigation beyond the scope required in connection with such examination.
SECTION 3.05 Securityholders Lists. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the
payment of interest on such Securities, as hereinabove specified, 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 thirty days after receipt by the Issuer
of any such request as of a date not more than 10 days prior to the time such
information is furnished.
SECTION 3.06 Reports by the Issuer The Issuer covenants to:
(a) file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer is not required to file with
the Commission, annual reports, information, documents and other reports
pursuant to either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, then
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the Issuer will file with the Trustee and will file with the Commission, in
accordance with rules and regulations prescribed by the Commission, such of the
supplementary and periodic information, documents and reports required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed in
such rules and regulations;
(b) file with the Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by the
Securities and Exchange Commission, such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations;
(c) transmit to the Securityholders, in the manner and to the extent
provided in Section 10.04, such summaries of any information, documents and
reports required to be filed with the Trustee pursuant to the provisions of
subdivisions (a) and (b) of this Section 3.06 as may be required by the rules
and regulations of the Securities and Exchange Commission.
SECTION 3.07 Corporate Existence. So long as any of the Securities
remain unpaid, the Issuer will at all times (except as otherwise provided or
permitted elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations. So long
as any of the Securities remain unpaid, the Issuer will not consolidate or merge
with or sell, convey or lease all or substantially all of its property to any
other corporation except as permitted in Article 8 hereof.
SECTION 3.09 Further Assurances. From time to time whenever requested by
the Trustee, the Issuer will execute and deliver such further instruments and
assurances and do such further acts as may be reasonably necessary or proper to
carry out more effectually the purposes of this Indenture or to secure the
rights and remedies hereunder of the holders of the Securities of any series.
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ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on
any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Securities of such series
(other than a covenant or warranty in respect of the Securities of such
series a default in whose performance or whose breach is elsewhere in
this section specifically dealt with), 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 Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of all series affected thereby, 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 Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
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 180 consecutive days; or
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(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
(f) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such
series.
If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or
4.01(f) above 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 any affected series then
Outstanding hereunder (each such series voting as a separate class) by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of such 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. If an
Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is
continuing, then the principal amount of all the Securities then outstanding and
interest accrued thereon, if any, shall be and become immediately due and
payable, without any notice or other action by any Holder or the Trustee, to the
full extent permitted by applicable law.
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 Issuer 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 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, 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
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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, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of 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 all the then outstanding
Securities of all such series that have been accelerated, each such series
voting as a separate class, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) 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.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have 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 all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal 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
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Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities 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, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) owing and unpaid in respect of
the Securities of any series, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee
and each
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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
any judicial proceedings relative to the Issuer or other obligor upon
the Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of 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
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of 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 and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or 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 except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
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 proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents
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and attorneys, shall be for the ratable benefit of the holders of the Securities
in respect of which such action was taken.
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 in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.03 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee pursuant
to Section 5.06;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the 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 such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of
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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; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal and interest or yield
to maturity, without preference or priority of principal over interest
or yield to maturity, or of interest or yield to maturity over
principal, or of any installment of interest over any other installment
of interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.04 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may proceed to
protect and enforce the rights vested in it by this Indenture, either at law or
in equity or 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 4.05 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.06 Limitations on Suits by Securityholder. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity
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as it may require against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.09; it being understood and
intended, and being expressly covenanted by the Holder of every Security with
every other 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 or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such 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. 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 4.07 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.06, every power and remedy given by this Indenture 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.
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SECTION 4.09 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate 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 with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction.
Nothing in this Indenture shall impair the right of the Trustee to take
any action which is not inconsistent with such direction or directions by
Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive an existing default or Event of Default, except a default in the
payment of Principal of or interest on any Security as specified in clauses (a)
or (b) of Section 4.01 or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.02. In the case of any such waiver, the Issuer, the
Trustee and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances The Trustee shall give to the Securityholders of any
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series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to Responsible Officers of the Trustee
which have occurred with respect to such series, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of 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, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, to any suit
instituted by a Holder pursuant to Section 4.07.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. 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 the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such 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
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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.
(a) Prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
the Securities of any 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 as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(2) 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
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, 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) 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 wilful misconduct, except that:
(1) this subsection (b) shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the holders relating to the time,
method and place of conducting any proceeding for any remedy
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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 shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein expressly provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
SECTION 5.02 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other 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 Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Issuer;
(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, suffered or omitted to be taken 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
trusts 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
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Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in connection with such
request, order or direction;
(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, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee 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
(h) the Trustee shall not be liable for any action taken, suffered
or omitted in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture.
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be
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accountable for the use or application by the Issuer of any of the Securities or
of the proceeds thereof.
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, 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 the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.05 Moneys Held by Trustee. All moneys received by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing from time to time by the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it 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 agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants and agrees to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the extent such
loss, liability or expense is due to the negligence or bad faith of the Trustee
or such predecessor Trustee. The obligations of the Issuer under this section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee. Such additional indebtedness shall be a senior claim and
lien 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, and the
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Securities are hereby subordinated to such senior claim. The parties agree that
if the Trustee renders services following an Event of Default under Section
4.01(d) or (e), compensation for such services is intended to constitute
administrative expense under any bankruptcy law.
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering 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, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.08 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939 and which has, or is a Wholly-Owned Subsidiary,
directly or indirectly of a bank holding company which has, a combined capital
and surplus of $50,000,000. If such corporation or holding company publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, State or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation or holding company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.09 Resignation and Removal; Appointment of Successor 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 resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor Trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, 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 six months may, subject to the provisions of
Section 4.12, on behalf of
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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
Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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 Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. 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 each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided in Section 6.01 of the action in that regard taken by the
Securityholders.
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(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 5.09 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor. Any successor
Trustee appointed as provided in Section 5.09 shall execute and deliver to the
Issuer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor 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 rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor Trustee, upon payment of its charges then unpaid,
the Trustee ceasing to act shall, subject to Section 5.06, pay over to the
successor Trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor Trustee all such
rights, powers, duties and obligations. Upon request of any such successor
Trustee, the Issuer 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
prior claim upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor 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 predecessor 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 trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor Trustee is
acting as
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Trustee at their last addresses as they shall appear in the Security register.
If the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.08, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
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
certificate 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, that the right to adopt the certificate of authentication
of any predecessor Trustee or to 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 5.12 Reports to the Trustee. (a) On May 15, 2000, and on or
before May 15 in every year thereafter, so long as any Securities are
Outstanding hereunder and as required by the Trust Indenture Act of 1939, the
Trustee shall transmit to the Securityholders and the Issuer, as hereinafter in
this Section 5.12 provided, a brief report dated as of the preceding March 15
with respect to:
(i) its eligibility under Section 5.08, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible under such
Section, a written statement to such effect; and
(ii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which
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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 4.11.
(b) Reports pursuant to this Section 5.12 shall be transmitted by mail
to all holders of Securities as the names and addresses of such holders appear
upon the registry books of the Issuer at the expense of the Issuer.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved by the
certificate of any notary public or other officer authorized to take
acknowledgment of deeds, that the Person executing such instrument acknowledged
to such notary public or other such officer the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary public
or other officer. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other Person acting in
a representative capacity, such certificate or affidavit shall also constitute
sufficient proof of such Person's authority. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more
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than 60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
holders of Securities of such series of record on such record date shall be
entitled to so vote or give such consent or revoke such vote or consent.
SECTION 6.03 Holders to be Treated as Owners. Prior to due presentment
of a Security for registration of transfer, the Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, 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 6.04 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities as to which the Trustee has received written notice are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be entitled to accept such
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Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 6.05 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
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 Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors certified
to the Trustee, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article 8;
(b) 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
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matters or questions arising under this Indenture or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders of the Securities in any material respect;
(c) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(d) 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 5.10;
(e) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act
of 1939;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to make any change that does not adversely affect the rights of
any Holder;
(h) as provided by or pursuant to a Board Resolution or indenture
supplemental hereto establishing the terms of one or more series of
Securities;
(i) to add to the covenants of the Issuer such new covenants,
restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the Holders of Securities, and with
respect to which the Trustee has received an Opinion of Counsel to a
similar effect, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default; provided,
that in respect of any such additional covenant, restriction, condition
or provision 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 an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the
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Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default; or
(j) to make any change so long as no Securities are Outstanding.
The Trustee is hereby authorized to join with the Issuer 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, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.02.
SECTION 7.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 6) 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 one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected
thereby:
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security;
(ii) reduce the Principal thereof or the rate of interest thereon,
or any premium payable with respect thereto;
(iii) change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable;
(iv) change the provisions for calculating the optional redemption
price, including the definitions relating thereto;
(v) make any change to Section 4.07 or 4.10 (except to include other
provisions subject to Section 4.10);
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(vi) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with any provisions of this Indenture or any defaults and
their consequences provided for in this Indenture;
(vii) alter or impair the right to convert any Security at the rate
and upon the terms provided in Article 12;
(viii) waive a default in the payment of Principal of or interest on
any Security of such Holder (except pursuant to a rescission of
acceleration pursuant to Section 4.01);
(ix) 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;
(x) modify any of the provisions of this Section 7.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby; or
(xi) change or waive any provision that, pursuant to a board
resolution or indenture supplemental hereto establishing the terms of
one or more series of Securities, is prohibited to be so changed or
waived.
Upon the written request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.01, the Trustee shall join with the Issuer 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.
It shall not be necessary for the consent of the Securityholders under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Neither the Issuer nor any of its 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 Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
SECTION 7.03 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, 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 Issuer 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 7.04 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 7 complies with the applicable provisions of
this Indenture.
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer 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
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supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets 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 Subsidiary with a positive net
worth; provided that, in connection with any such merger of the Issuer with a
Wholly-Owned Subsidiary, no consideration (other than common stock) in the
surviving person or the Issuer shall be issued or distributed to the
stockholders of the Issuer), unless (i) either (x) the Issuer shall be the
continuing corporation, or the successor corporation or (y) the Person formed by
such consolidation or into which the Issuer is merged or that acquires by sale
or conveyance substantially all the assets of the Issuer (if other than the
Issuer) shall be a corporation or limited liability company organized under the
laws of the United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities, according to their tenor, 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 Issuer, by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, (ii)
immediately after giving effect to such transaction, no default or Event of
Default shall have occurred and be continuing and (iii) the Issuer delivers 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 Section 8.01 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 the Board of Directors, whose determination shall be
evidenced by a board resolution certified to the Trustee, the principal purpose
of such transaction is to change the state of incorporation of the Issuer; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
SECTION 8.02 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
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substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of 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 Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 9.01, the Issuer may terminate its obligations under
the Securities of any series and this Indenture with respect to Securities of
such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 3.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Issuer, as provided in Section 9.05) have been
delivered to the Trustee for cancellation and the Issuer has paid all
sums payable by it hereunder; or
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(ii) (A) the 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, (B) the Issuer irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities 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 and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay Principal
of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (C) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture with respect to the Securities of such
series have been complied with.
With respect to the foregoing clause (i), only the Issuer's obligations
under Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Issuer's
obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Issuer's obligations in
Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities of such
series and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
SECTION 9.02 Defeasance. Except as provided below, the Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute instruments in form and
substance satisfactory to the Issuer and the Trustee acknowledging the same);
provided that the following conditions shall have been satisfied:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds specifically pledged as security for, and dedicated
solely to, Holders of the Securities of such series, for payment of the
Principal of and interest on the Securities of such series, money or
U.S. Government
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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
outstanding Securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is
bound;
(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of the Issuer's exercise of its option under this Section
9.02 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 or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the
UCC; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 9.02 of the Securities of such series have been complied
with.
The Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09
and 9.05 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Issuer's obligations
in Sections 5.06 and 9.05 shall survive.
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SECTION 9.03 Covenant Defeasance. The Issuer may omit to comply with any
term, provision or condition set forth in Section 3.04 (or any other specific
covenant relating to the Securities of any series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clause (c) of Section 4.01, with
respect to the outstanding Securities of such series if:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities
of such series, for payment of the Principal of and interest, if any, on
the Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount 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 interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is
bound;
(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have
a valid security interest in the trust funds subject to no prior liens
under the UCC and (B) such Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
covenant defeasance 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; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the covenant defeasance
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contemplated by this Section 9.03 of the Securities of such series have
been complied with.
SECTION 9.04 Application of Trust Money. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law. The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.01, 9.02 or 9.03, as the case may be, or the principal and interest received
in respect thereof, other than any such tax, fee or other charge that by law is
for the account of the Holders.
SECTION 9.05 Repayment to Issuer. Subject to Sections 5.06, 9.01, 9.02
and 9.03, the Trustee and the Paying Agent shall promptly pay to the Issuer upon
request set forth in an Officers' Certificate any money held by them at any time
and not required to make payments hereunder and thereupon shall be relieved from
all liability with respect to such money. Subject to applicable escheat or
abandoned property laws, the Trustee and the Paying Agent shall pay to the
Issuer upon written request any money held by them and required to make payments
hereunder under this Indenture that remains unclaimed for two years; provided
that the Trustee or such Paying Agent before being required to make any payment
may cause to be published at the expense of the Issuer once in an Authorized
Newspaper or mail to each Holder entitled to such money at such Holder's address
(as set forth in the register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date of
such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Issuer. After payment to the Issuer, Holders entitled to
such money must look to the Issuer for payment as unsecured general creditors
unless an abandoned property law designates another Person, and all liability of
the Trustee and such Paying Agent with respect to such money shall cease.
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ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders. 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 to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Comcast Corporation at 1500 Market Street, Philadelphia,
Pennsylvania 19102-2148, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and
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mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. 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 Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent 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,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
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 (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or
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representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.08 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
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SECTION 10.09 Counterparts. 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 10.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01 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 11.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed 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 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.
The notice of redemption to each such Holder shall specify the CUSIP
numbers of such Securities to be redeemed, the principal amount of each Security
of such series held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. 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
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fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
written request, by the Trustee in the name and at the expense of the Issuer.
By 10:00 a.m. (New York City time) on the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.03) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
In the case of the redemption of all of the Securities of a series
outstanding, the Issuer shall notify the Trustee in writing of the redemption
date 45 days (unless a shorter period shall be satisfactory to the Trustee)
prior to the redemption date.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in whole or in
part. Securities of a series may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 11.03 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities 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, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price,
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together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and,
except as provided in Sections 5.05 and 9.04, such Securities shall cease from
and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.04 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, 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 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.05 Mandatory and Optional Sinking Funds. 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
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payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that
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the Issuer will make no optional sinking fund payment with respect to such
series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer shall so request in writing) with respect
to the Securities of any particular series, such cash shall be applied 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. If such amount shall be $50,000 or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 11.02, 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 shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Issuer or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Issuer or the Trustee, in
the name and at the expense of the Issuer (if the Issuer shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in the manner provided in Section 11.02 (and with the effect
provided in Section 11.03) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or 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 if
the Trustee has received written notice thereof at least three Business Days
prior to any payment hereunder except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, if the Trustee has received written notice of such default or Event
of Default at least three Business Days prior to any payment hereunder, 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
deemed to have been collected under Article 4 and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this section to the redemption of such Securities.
SECTION 11.06 Conversion Arrangement on Call For Redemption. In
connection with any redemption of Securities, the Issuer shall deposit the
amount due in connection with such redemption as required by Section 11.02 or it
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities and to make the deposit required of it by
Section 11.02 on its behalf by paying to the Trustee or the Paying Agent in
trust for the Securityholders, on or before 10:00 a.m. New York time on the
redemption date, an amount no less than the redemption price, together with
interest, if any, accrued to the redemption date of such Securities, in
immediately available funds. Notwithstanding anytime to the contrary contained
in this Article 11, the obligation of the Issuer to pay the redemption price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the holders thereof may, at the option of the
Issuer, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (notwithstanding anything to the contrary
contained in Article 12) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment of the
above amount aforesaid. The Trustee or the Paying Agent shall hold and pay to
the Securityholders whose Securities are selected for redemption
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any such amount paid to it in the same manner as it would moneys deposited with
it by the Issuer for the redemption of Securities. Without the Trustee's and the
Paying Agent's prior written consent, no arrangement between the Issuer and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify
the Trustee from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Issuer and such purchasers, including
the costs and expenses incurred by the Trustee and the Paying Agent in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01 Applicability of Article. Securities of any series which
are convertible into Capital Stock at the option of the Securityholder shall be
convertible in accordance with their terms and (unless otherwise specified as
contemplated by Section 2.03 for Securities of any series) in accordance with
this Article. Each reference in this Article 12 to "a Security" or "the
Securities" refers to the Securities of the particular series that is
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Securities of any series are convertible refers to the class
of Capital Stock into which the Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 2.03). If
more than one series of Securities with conversion privileges are outstanding at
any time, the provisions of this Article 12 shall be applied separately to each
such series.
SECTION 12.02 Right of Securityholders to Convert Securities. Subject to
and upon compliance with the terms of the Securities and the provisions of
Section 11.06 and this Article 12, at the option of the holder thereof, any
Security of any series of any authorized denomination, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of $1,000,
may, at any time during the period specified in the Securities of such series,
or in case such Security or portion thereof shall have been called for
redemption, then in respect of such Security or portion thereof until and
including, but not after (unless the Issuer shall default in payment due upon
the redemption thereof) the close of business on the Business Day prior to the
date fixed for redemption except that in the case of redemption at the option of
the Securityholder, if specified in the terms
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of such Securities, such right shall terminate upon receipt of written notice of
the exercise of such option, be converted into duly authorized, validly issued,
fully paid and nonassessable shares of the class of Class A Common Stock and
Class A Special Common Stock, or combination thereof, as specified in such
Security, at the conversion rate for each $1,000 principal amount of Securities
(such initial conversion rate reflecting an initial conversion price specified
in such Security) in effect on the conversion date, or, in case an adjustment in
the conversion rate has taken place pursuant to the provisions of Section 12.05,
then at the applicable conversion rate as so adjusted, upon surrender of the
Security or Securities, the principal amount of which is so to be converted, to
the Issuer at any time during usual business hours at the office or agency to be
maintained by it in accordance with the provisions of Section 3.02, accompanied
by a written notice of election to convert as provided in Section 12.03 and, if
so required by the Issuer and the Trustee, by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the registered holder or his attorney duly authorized in writing.
All Securities surrendered for conversion shall, if surrendered to the Issuer or
any conversion agent, be delivered to the Trustee for cancellation and cancelled
by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided
in Section 2.10.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 12.05 or such other or different terms, if any, as may be
specified by Section 2.03 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of it.
SECTION 12.03 Issuance of Shares of Capital Stock on Conversion. As
promptly as practicable after the surrender, as herein provided, of any Security
or Securities for conversion, the Issuer shall deliver or cause to be delivered
at its said office or agency to or upon the written order of the holder of the
Security or Securities so surrendered a certificate or certificates representing
the number of duly authorized, validly issued, fully paid and nonassessable
shares of Capital Stock into which such Security or Securities may be converted
in accordance with the terms thereof and the provisions of this Article 12.
Prior to delivery of such certificate or certificates, the Issuer shall require
a written notice at its said office or agency from the holder of the Security or
Securities so surrendered stating that the holder irrevocably elects to convert
such Security or Securities, or, if less than the entire principal amount
thereof is to be converted, stating the portion thereof to be converted. Such
notice shall also state the name or names (with address and social security or
other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time
that such Security or Securities shall have been surrendered for
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conversion and such notice shall have been received by the Issuer or the
Trustee, the rights of the holder of such Security or Securities as a
Securityholder shall cease at such time, the person or persons entitled to
receive the shares of Capital Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become the record holder
or holders of such shares of Capital Stock at such time and such conversion
shall be at the conversion rate in effect at such time. In the case of any
Security of any series which is converted in part only, upon such conversion,
the Issuer shall execute and the Trustee shall authenticate and deliver to the
holder thereof, as requested by such holder, a new Security or Securities of
such series of authorized denominations in aggregate principal amount equal to
the unconverted portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Issuer will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 12.04 No Payment or Adjustment for Interest or Dividends. Unless
otherwise specified as contemplated by Section 2.03 for Securities of such
series, Securities surrendered for conversion during the period from the close
of business on any regular record date (or special record date for payment of
defaulted interest) next preceding any interest payment date to the opening of
business on such interest payment date (except Securities called for redemption
on a redemption date within such period) when surrendered for conversion must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive on such interest payment date. Payment of
interest shall be made, as of such interest payment date or such date, as the
case may be, to the holder of record of the Securities as of such regular, or
special record date, as applicable. Except where Securities surrendered for
conversion must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Issuer on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Security with original issue discount, the
fixed number of shares of Capital Stock into which such Security is convertible
delivered by the Issuer to the holder thereof shall be applied, first, to pay
the accrued original issue discount attributable to the period from the date of
issuance to the date of conversion of
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such Security, and, second, to pay the balance of the principal amount of such
Security.
SECTION 12.05 Adjustment of Conversion Rate. Unless otherwise specified
as contemplated by Section 2.03 for Securities of such series, the conversion
rate for Securities in effect at any time shall be subject to adjustment as
follows:
(a) In case the Issuer shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares, of the class of Capital Stock into which Securities of such
series are convertible (including any such reclassification in connection with a
consolidation or merger in which the Issuer is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Issuer shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock, so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (e) below) on the date on
which such issuance was declared or otherwise announced by the Issuer (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such
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principal amount of Securities was convertible immediately prior to such record
date by a fraction, of which the numerator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
additional shares of such class of Capital Stock offered for subscription or
purchase (or in the case of a right or warrant to purchase securities
convertible into such class of Capital Stock, the aggregate number of additional
shares of such class of Capital Stock into which the convertible securities so
offered are initially convertible), and of which the denominator shall be the
number of shares of such class of Capital Stock outstanding on the Determination
Date plus the number of shares of such class of Capital Stock obtained by
dividing the aggregate offering price of the total number of shares so offered
(or, in the case of a right or warrant to purchase securities convertible into
such class of Capital Stock, the aggregate initial conversion price of the
convertible securities so offered, after adding thereto the aggregate exercise
price of such rights or warrants computed on the basis of the maximum number of
shares of such class of Capital Stock issuable upon conversion of such
convertible securities) by such current market price. Shares of such class of
Capital Stock of the Issuer owned by or held for the account of the Issuer shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and
to the extent that shares of such class of Capital Stock are not delivered (or
securities convertible into shares of such class of Capital Stock are not
delivered) after the expiration of such rights or warrants (or, in the case of
rights or warrants to purchase securities convertible into such class of Capital
Stock once exercised, the expiration of the conversion right of such securities)
the conversion rate shall be readjusted to the conversion rate which would then
be in effect had the adjustments made upon the issuance of such rights or
warrants (or securities convertible into shares) been made upon the basis of
delivery of only the number of shares actually delivered. In the event that such
rights or warrants are not so issued, the conversion rate shall again be
adjusted to be the conversion rate which would then be in effect if such record
date had not been fixed.
(c) In case the Issuer shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Securities
of such series are convertible (including any such distribution made in
connection with a consolidation or merger in which the Issuer is the continuing
corporation) of evidences of its indebtedness or assets (excluding any cash
dividends paid from retained earnings and dividends payable in Capital Stock for
which adjustment is made pursuant to subsection (a) above or (d) below) or
subscription rights or warrants (excluding subscription rights or warrants to
purchase the class of Capital Stock into which Securities of such series are
convertible), the number of shares of such class of Capital Stock into which
each $1,000 principal amount of Securities of such series shall be convertible
after such record date shall be determined by multiplying the number of shares
of such class of Capital Stock
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into which such principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair
market value of the assets of the Issuer, after deducting therefrom all
liabilities of the Issuer and all preferences (including accrued but unpaid
dividends) in respect of classes of Capital Stock having a preference with
respect to the assets of the Issuer over such class of Capital Stock (all as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a certificate signed by any vice chairmen of the board, vice
president or assistant vice president and treasurer of the Issuer, filed with
the Trustee and each conversion agent) on such record date, and of which the
denominator shall be such fair market value after deducting therefrom such
liabilities and preferences, less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive, and described in a
statement filed with the Trustee and each conversion agent) of the assets or
evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
(d) In case the Issuer shall, by dividend or otherwise, distribute to
all holders of its Capital Stock cash (excluding (x) any quarterly cash dividend
on the Capital Stock to the extent the aggregate cash dividend per share of
Capital Stock in any fiscal quarter does not exceed the greater of (A) the
amount per share of Capital Stock of the next preceding quarterly cash dividend
on the Capital Stock to the extent such preceding quarterly dividend did not
require any adjustment of the conversion rate pursuant to this Section 12.05(d)
(as adjusted to reflect subdivisions or combinations of the Capital Stock), and
(B) 3.75% of the current market price of the Capital Stock (determined as
provided in Section 12.05(e)) on the date of declaration of such dividend and
(y) any dividend or distribution in connection with the liquidation, dissolution
or winding up of the Issuer, whether voluntary or involuntary), then, in such
case, unless the Issuer elects to reserve such cash for distribution to the
holders of the Securities upon the conversion of the Securities so that any such
holder converting Securities will receive upon such conversion, in addition to
the shares of Capital Stock to which such holder is entitled, the amount of cash
which such holder would have received if such holder had, immediately prior to
the record date for such distribution of cash, converted its Securities into
Capital Stock, the conversion rate shall be adjusted so that the same shall
equal the rate determined by multiplying the conversion rate in effect
immediately prior to the record date by a fraction of which the denominator
shall be the current market price of the Capital Stock (determined as provided
in Section 12.05(e)) on the record date less the amount of cash so distributed
(and not excluded as provided above) applicable to one share of Capital Stock
and the
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numerator shall be such current market price of the Capital Stock (determined as
provided in Section 12.05(e)), such adjusted to be effective immediately prior
to the opening of business on the day following the record date; provided,
however, that in the event the portion of the cash so distributed applicable to
one share of Capital Stock is equal to or greater than the current market price
of the Capital Stock (determined as provided in Section 12.05(e)) on the record
date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Securityholder shall have the right to receive upon conversion the
amount of cash such holder would have received had such holder converted each
Security on the record date. If such dividend or distribution is not so paid or
made, the conversion rate shall again be adjusted to be the conversion rate
which would then be in effect if such dividend or distribution had not been
declared.
(e) For the purpose of any computation under subsections (b) and (d)
above and Section 12.06, the current market price per share of the Capital Stock
on any date as of which such price is to be computed shall mean the average of
the Closing Prices for the 30 consecutive Business Days commencing 45 Business
Days before such date.
(f) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article 12 (other than this subsection (e)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution for United
States income tax purposes to the holders of Securities or the class of Capital
Stock into which such Securities are convertible. All calculations under this
Article 12 shall be made to the nearest cent or to the nearest one-thousandth of
a share, as the case may be. Anything in this Section 12.05 to the contrary
notwithstanding, the Issuer shall be entitled to make such adjustments in the
conversion rate, in addition to those required by this Section 12.05, as it in
its discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights to purchase stock or securities,
or distribution of securities convertible into or exchangeable for stock
hereafter made by the Issuer to its shareholders shall not be taxable for United
States income tax purposes.
(g) Whenever the conversion rate is adjusted, as herein provided, the
Issuer shall promptly file with the Trustee and with the office or agency
maintained by the Issuer for the conversion of Securities of such series
pursuant to Section 3.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the
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regular accountants employed by the Issuer) setting forth the conversion rate
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. Such certificate shall be conclusive
evidence of the correctness of such adjustment. Neither the Trustee nor any
conversion agent shall be under any duty or responsibility with respect to any
such certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Securityholder of such series
desiring to inspect the same. The Issuer shall promptly cause a notice setting
forth the adjusted conversion rate to be mailed to the holders of Securities of
such series, as their names and addresses appear upon the register of the
Issuer.
(h) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or in
lieu of shares of the class of Capital Stock into which such Securities are
convertible or as a result of an adjustment made pursuant to subsection (a)
above, the holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Issuer other than
shares of the class of Capital Stock into which the Issuer of such series are
convertible, thereafter the number of such other shares so receivable upon
conversion of any Security shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the class of Capital Stock into which the Securities of such series
are convertible contained in subsections (a) to (f), inclusive, above, and the
provisions of this Article 12 with respect to the class of Capital Stock into
which the Securities of such series are convertible shall apply on like terms to
any such other shares.
(i) The conversion rate with respect to any Securities with original
issue discount, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Security for accrued
original issue discount.
(j) In the event that the Securities of any series are convertible into
more than one class of Capital Stock, the provisions of this Section 12.05 shall
apply separately to events affecting each such class.
SECTION 12.06 No Fractional Shares to Be Issued. No fractional shares of
Capital Stock shall be issued upon conversions of Securities. If more than one
Security of any series shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Capital Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified
67
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portions thereof), the Issuer shall pay a cash adjustment in respect of such
fraction of a share in an amount equal to the same fractional interest of the
current market price (as defined in Section 12.05) per share of Capital Stock on
the Business Day next preceding the day of conversion.
SECTION 12.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Issuer with, or
merger of the Issuer into, any other corporation (other than a consolidation or
merger in which the Issuer is the continuing corporation), or in the case of any
sale or transfer of all or substantially all of the assets of the Issuer, the
corporation formed by such consolidation or the corporation into which the
Issuer shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Articles 7 and 8 as they
relate to supplemental indentures, providing that the holder of each Security
then Outstanding of a series which was convertible into Capital Stock shall have
the right thereafter to convert such Security into the kind and amount of shares
of stock and other securities and property, including cash, receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Capital Stock of the Issuer into which such Securities might have been converted
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental indenture shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect and shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article 12. Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provision contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property receivable by Securityholders upon the
conversion of their Securities after any such consolidation, merger, sale or
transfer, or to any adjustment to be made with respect there to and, subject to
the provisions of Article 5, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect thereto. If in the case of any such
consolidation, merger, sale or transfer, the stock or other securities and
property receivable by a holder of the Securities includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the holders of the Securities as the Board of Directors shall
reasonably consider necessary. The above provisions of this Section 12.07 shall
similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 12.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action. With respect to the Securities of any series, in case:
68
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(a) the Issuer shall authorize the issuance to all holders of the class
of Capital Stock into which Securities of such series are convertible of rights
or warrants to subscribe for or purchase shares of its Capital Stock or of any
other right;
(b) the Issuer shall authorize the distribution to all holders of the
class of Capital Stock into which Securities of such series are convertible of
evidences of its indebtedness or assets (except for the exclusions with respect
to certain dividends set forth in Section 12.05(c));
(c) of any subdivision, combination or reclassification of the class of
Capital Stock into which Securities of such series are convertible or of any
consolidation or merger to which the Issuer is a party and for which approval by
the shareholders of the Issuer is required, or of the sale or transfer of all or
substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 3.02, and shall cause to be mailed to the holders of
Securities of such series, at their last addresses as they shall appear upon the
register of the Issuer, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date as of which the holders of
such class of Capital Stock to be entitled to receive any such rights, warrants
or distribution are to be determined, or (ii) the date on which any such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to
become effective, and the date as of which it is expected that holders of record
of such class of Capital Stock shall be entitled to exchange their Capital Stock
of such class for securities or other property, if any, deliverable upon such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action. The failure to
give the notice required by this Section 12.08 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action, or the vote upon
any of the foregoing. Such notice shall also be published by and at the expense
of the Issuer not later than the aforesaid filing date at least once in an
Authorized Newspaper.
SECTION 12.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Issuer covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights,
69
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solely for the purpose of issue upon conversion of Securities of any series as
herein provided, such number of shares of Capital Stock of such class as shall
then be issuable upon the conversion of all Outstanding Securities of such
series. The Issuer covenants that an shares of Capital Stock which shall be so
issuable shall, when issued or delivered, be duly and validly issued shares of
the class of authorized Capital Stock into which Securities of such series are
convertible, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital stock accounts of the Issuer will be duly credited.
SECTION 12.10 Compliance with Governmental Requirements. The Issuer
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of such
Capital Stock, before such shares may be issued upon conversion, the Issuer will
use its best efforts to cause such shares to be duly registered, listed or
approved, as the case may be.
SECTION 12.11 Payment of Taxes upon Certificates for Shares Issued Upon
Conversion. The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting
Securityholders for any tax (including, without limitation, all documentary and
stamp taxes) in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or in such names
as may be directed by, the holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the holder of the Security
converted, and the Issuer shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Issuer the amount of such tax or shall have
established to the satisfaction of the Issuer that such tax has been paid.
SECTION 12.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be under any duty or
responsibility to any Securityholder to determine whether any facts exist which
may require any adjustment of the conversion rate or conversion price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent
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shall be accountable with respect to the registration under securities laws,
listing, validity or value (or the kind or amount) of any shares of Capital
Stock, or of any other securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and neither the Trustee nor
any conversion agent makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Issuer to make any cash payment or to issue, transfer or deliver any shares of
stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion; and the Trustee, subject to the
provisions of Article 5, and any conversion agent shall not be responsible for
any failure of the Issuer to comply with any of the covenants of the Issuer
contained in this Article 12.
71
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the first date written above.
COMCAST CORPORATION
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-----------------------------------
BANK OF MONTREAL TRUST
COMPANY
By:
-----------------------------------
[CORPORATE SEAL]
Attest:
By:
-----------------------------------
EXHIBIT 4.2
================================================================================
COMCAST CORPORATION
and
BANKERS TRUST COMPANY, Trustee
INDENTURE
Dated as of June 15, 1999
------------------
Subordinated Securities
================================================================================
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
SECTION 1.01 Certain Terms Defined.............................................1
ARTICLE 2
SECTION 2.01 Forms Generally...................................................8
SECTION 2.02 Form of Trustee's Certification of Authentication.................8
SECTION 2.03 Amount Unlimited; Issuable in Series..............................9
SECTION 2.04 Authentication and Delivery of Securities........................10
SECTION 2.05 Execution of Securities..........................................11
SECTION 2.06 Certificate of Authentication....................................12
SECTION 2.07 Denomination and Date of Securities; Payments of Interest. ......12
SECTION 2.08 Registration, Transfer and Exchange..............................13
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities........14
SECTION 2.10 Cancellation of Securities; Destruction Thereof. ................15
SECTION 2.11 Temporary Securities.............................................15
SECTION 2.12 Computation of Interest..........................................16
ARTICLE 3
SECTION 3.01 Payment of Principal and Interest................................16
SECTION 3.02 Offices for Payments, etc........................................16
SECTION 3.03 Paying Agents....................................................17
SECTION 3.04 Certificate of the Issuer........................................18
SECTION 3.05 Securityholders Lists............................................19
SECTION 3.06 Reports by the Issuer............................................19
SECTION 3.07 Corporate Existence..............................................20
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations................20
SECTION 3.09 Further Assurances...............................................20
ARTICLE 4
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................20
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PAGE
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SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt........................................................23
SECTION 4.03 Application of Proceeds..........................................25
SECTION 4.04 Suits for Enforcement............................................26
SECTION 4.05 Restoration of Rights on Abandonment of Proceedings..............27
SECTION 4.06 Limitations on Suits by Securityholder...........................27
SECTION 4.07 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................27
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default...........................................28
SECTION 4.09 Control by Securityholders.......................................28
SECTION 4.10 Waiver of Past Defaults..........................................29
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.......................................29
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................29
ARTICLE 5
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default............................................30
SECTION 5.02 Certain Rights of the Trustee....................................31
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof...............33
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.........33
SECTION 5.05 Moneys Held by Trustee...........................................33
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim.......................................................33
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc...........34
SECTION 5.08 Persons Eligible for Appointment as Trustee......................34
SECTION 5.09 Resignation and Removal; Appointment of Successor
Trustee.....................................................35
SECTION 5.10 Acceptance of Appointment by Successor...........................36
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee.........................................37
SECTION 5.12 Reports to the Trustee...........................................38
ii
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PAGE
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ARTICLE 6
SECTION 6.01 Evidence of Action Taken by Securityholders......................38
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date.....................................39
SECTION 6.03 Holders to be Treated as Owners..................................39
SECTION 6.04 Securities Owned by Issuer Deemed Not Outstanding................40
SECTION 6.05 Right of Revocation of Action Taken..............................40
ARTICLE 7
SECTION 7.01 Supplemental Indentures Without Consent of
Securityholders.............................................41
SECTION 7.02 Supplemental Indentures With Consent of Securityholders..........42
SECTION 7.03 Effect of Supplemental Indenture.................................45
SECTION 7.04 Documents to Be Given to Trustee.................................45
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures..................................................45
ARTICLE 8
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms...................45
SECTION 8.02 Successor Corporation Substituted................................46
ARTICLE 9
SECTION 9.01 Defeasance Within One Year of Payment............................47
SECTION 9.02 Defeasance.......................................................48
SECTION 9.03 Covenant Defeasance..............................................49
SECTION 9.04 Application of Trust Money.......................................50
SECTION 9.05 Repayment to Issuer..............................................51
ARTICLE 10
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability.....................51
iii
<PAGE>
PAGE
----
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.............................................51
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture.............52
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders.............................................52
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.....................................52
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays.................54
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.......................................54
SECTION 10.08 New York Law to Govern..........................................54
SECTION 10.09 Counterparts....................................................54
SECTION 10.10 Effect of Headings..............................................54
ARTICLE 11
SECTION 11.01 Applicability of Article........................................54
SECTION 11.02 Notice of Redemption; Partial Redemptions.......................55
SECTION 11.03 Payment of Securities Called for Redemption.....................56
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................57
SECTION 11.05 Mandatory and Optional Sinking Funds............................57
SECTION 11.06 Conversion Arrangement on Call For Redemption...................59
ARTICLE 12
SECTION 12.01 Agreement of Subordination......................................60
SECTION 12.02 Payments to Securityholders.....................................61
SECTION 12.03 Subrogation of Securities.......................................63
SECTION 12.04 Authorization by Securityholders................................64
SECTION 12.05 Notice to Trustee...............................................64
SECTION 12.06 Trustee's Relation to Senior Indebtedness.......................65
SECTION 12.07 No Impairment of Subordination..................................65
SECTION 12.08 Rights of Trustee...............................................65
iv
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PAGE
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ARTICLE 13
SECTION 13.01 Applicability of Article........................................66
SECTION 13.02 Right of Securityholders to Convert Securities..................66
SECTION 13.03 Issuance of Shares of Capital Stock on Conversion...............67
SECTION 13.04 No Payment or Adjustment for Interest or Dividends..............68
SECTION 13.05 Adjustment of Conversion Rate...................................68
SECTION 13.06 No Fractional Shares to Be Issued...............................73
SECTION 13.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance..................................73
SECTION 13.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action.....................................74
SECTION 13.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities..................................................75
SECTION 13.10 Compliance with Governmental Requirements.......................75
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued
Upon Conversion.............................................76
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions..........76
v
<PAGE>
THIS INDENTURE, dated as of June 15, 1999 between COMCAST CORPORATION,
a Pennsylvania corporation (the "Issuer"), and BANKERS TRUST COMPANY, a New York
banking corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences 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, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall 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. 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
<PAGE>
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Authorized Newspaper" means a newspaper in the English language or in
an official language of the country of publication, customarily printed on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. If, because of temporary suspension of
publication or general circulation of any newspaper or for any other reason, it
is impossible or impracticable to make any publication of any notice required by
this Indenture in the manner herein provided, such publication or other notice
in lieu thereof which is made at the written direction of the Issuer by the
Trustee shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" means, with respect to any Person, including the Issuer,
any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital stock or
equity, including, without limitation, all Common Stock and Preferred Stock.
"Class A Common Stock" means the Class A Common Stock, $1.00 par value,
of the Issuer.
"Class A Special Common Stock" means the Class A Special Common Stock,
$1.00 par value, of the Issuer.
"Closing Price" on any day when used with respect to any class of
Capital Stock means (i) if the stock is then listed or admitted to trading on a
national securities exchange in the United States, the last reported sale price,
regular way, for the stock as reported in the consolidated transaction or other
reporting system for securities listed or traded on such exchange, or (ii) if
the stock is listed on the National Association of Securities Dealers, Inc.
Automated Quotations System National Market System (the "NASDAQ National Market
System"), the last reported sale price, regular way, for the stock, as reported
on such list, or (iii) if the stock is not so admitted for trading on any
national securities exchange or the
2
<PAGE>
NASDAQ National Market System, the average of the last reported closing bid and
asked prices reported by the National Association of Securities Dealers, Inc.
Automated Quotations System as furnished by any member in good standing of the
National Association of Securities Dealers, Inc., selected from time to time by
the Issuer for that purpose or as quoted by the National Quotation Bureau
Incorporated. In the event that no such quotation is available for any day, the
Board of Directors shall be entitled to determine in good faith the current
market price on the basis of such quotations as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Four Albany Street, New York, New York, 10006,
Attention: Corporate Trust and Agency Services.
"Default" means any Event of Default as defined in Section 4.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Event of Default" means any event or condition specified as such in
Section 4.01.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
3
<PAGE>
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article 5) Comcast
Corporation, a Pennsylvania corporation, and, subject to Article 8, its
successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.05.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date 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" means any Security that 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 4.01.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee 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 Issuer)
or shall have been set aside, segregated and held in trust by the Issuer
for the holders of such Securities (if the Issuer shall act as its own
paying agent), provided that if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been
4
<PAGE>
given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series 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 4.01.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Registered Security" means any Security registered on the register
maintained by the Issuer pursuant to Section 2.08.
"Responsible Officer" when used with respect to the Trustee means any
vice president, any assistant vice president, any assistant secretary, or any
assistant treasurer within the Corporate Trust and Agency Services (or a
successor group) of the Trustee or any other 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.
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"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, interest
on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Issuer for money borrowed (including any
indebtedness secured by a mortgage, conditional sales contract or other lien
which is (i) given to secure all or part of the purchase price of property
subject thereto, whether given to the vendor of such property or to another or
(ii) existing on property at the time of acquisition thereof);
(b) all indebtedness of the Issuer evidenced by notes, debentures, bonds
or other securities sold by the Issuer for money;
(c) all lease obligations of the Issuer which are capitalized on the
books of the Issuer in accordance with generally accepted accounting principles;
(d) all indebtedness of others of the kinds described in either of the
preceding clauses (a) or (b) and all lease obligations of others of the kind
described in the preceding clause (c) assumed by or guaranteed in any manner by
the Issuer or in effect guaranteed by the Issuer through an agreement to
purchase, contingent or otherwise; and
(e) all renewals, extensions or refundings of indebtedness of the kinds
described in any of the preceding clauses (a), (b) and (d) and all renewals or
extensions of lease obligations of the kinds described in either of the
preceding clauses (c) and (d);
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
lease, renewal, extension or refunding is not superior in right of payment to
the Securities.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of all votes
represented by all classes of outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
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"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 5, shall also include
any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of 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, 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.
"vice president" when used with respect to the Issuer means any vice
president, whether or not designated by a number or a word or words added before
or after the title of "vice president".
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly-Owned" is defined to mean, with respect to any Subsidiary of any
person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
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"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, 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
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors 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 imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. The Issuer
shall furnish any such legends to the Trustee in writing.
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 Certification 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 herein and
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
------------------------------
Authorized Signatory
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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. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is
payable;
(e) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.02);
(f) 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 Issuer, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices
at which and the period or periods within 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;
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(h) the obligation, if any, of the Issuer to permit the conversion
of the Securities of such series into Class A Common Stock or Class A
Special Common Stock, or a combination thereof, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period and any other provision in addition to or in lieu of those set
forth in this Indenture relative to such obligation);
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) 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
4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(l) any trustees, authenticating or paying agents, transfer agents
or registrar or any other agents with respect to the Securities of such
series.
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.
SECTION 2.04 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
Chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. 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 5.01) shall be fully protected in
relying upon:
(a) a certified copy of any resolution or resolutions of the Board
of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause 2.04(b) below;
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(b) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any, and the
documentation required to be delivered pursuant to Section 7.04;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.01 and 2.03, respectively
and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance with Section
10.05, to the effect that
(i) that the form or forms and 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
2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) that such Securities, when authenticated and delivered by
the Trustee and issued by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms;
(iii) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have been
complied with; and
(iv) covering 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 by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability.
SECTION 2.05 Execution of Securities The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice
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chairman of its Board of Directors or its president or any vice president and
(b) by its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.06 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer 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.
SECTION 2.07 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
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 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 plan as the officers of
the Issuer executing the same may determine as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.03.
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The person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08 Registration, Transfer and Exchange. The Issuer will keep
or cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.02 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.02, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.02, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
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All Securities presented for registration of transfer, exchange,
redemption, conversion or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
mailing or first publication of notice of redemption of Securities of such
series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be
redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
and shall be surrendered to the Trustee, the Issuer shall execute, and 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 or defaced Security. If the Holder of any Security claims that
the Security has been lost, destroyed or wrongfully taken, the Issuer shall
execute, and 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 lost, destroyed or wrongfully taken Security, if the
applicant so requests before the Issuer has notice that the Security has been
acquired by a protected purchaser, and the applicant furnishes to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and the applicant satisfies other reasonable requirements imposed
by the Issuer.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee and its counsel) connected therewith. In case any
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Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer 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 or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or wrongful taking, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the
Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
wrongful taking of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or wrongfully taken Security
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in)
this Indenture equally and proportionately with any and all other Securities of
such series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or wrongfully taken Securities
and shall preclude any and all other rights or remedies.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, conversion, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall dispose of canceled Securities held by it in
accordance with the record retention policies of the Trustee in effect from time
to time and, if such cancelled certificates are destroyed, shall deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the
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Trustee). Temporary Securities of any series shall be issuable as registered
Securities without coupons, of any authorized denomination, and substantially in
the form of the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.02, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 2.12 Computation of Interest. Except as otherwise specified in
the Securities of a series, interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.01 Payment of Principal and Interest. The Issuer 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 interest on, each of
the Securities of such series at the place or places, 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 or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.02 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in the Borough of Manhattan, The
City of New York an office or agency (a) where the Securities may be presented
for payment, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, (c) where notices and
demands to
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or upon the Issuer in respect of the Securities or of this Indenture may be
served and (d) for Securities of each series that is convertible, where such
Securities may be presented for conversion. The Issuer will give to the Trustee
written notice of the location of any such office or agency and of any change of
location thereof. Unless otherwise specified in accordance with Section 2.03,
the Issuer hereby initially designates the Corporate Trust Office of Trustee as
the office to be maintained by it for each such purpose. In case the Issuer
shall fail to so designate or maintain any such office or agency 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 Corporate
Trust Office.
SECTION 3.03 Paying Agents. Whenever the Issuer 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 provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer 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 or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the
failure referred to in clause 3.03(b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such 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
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principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Whenever the Issuer shall have one or more paying agents for any series
of Securities, it will, on or before each due date of the principal of or
interest on any Securities of such series, deposit with the paying agent or
agents for the Securities of such series a sum, by 10:00 a.m. New York time in
immediately available funds on the payment date, sufficient to pay the principal
or interest so becoming due with respect to the Securities of such series, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee in writing of any failure so to act.
Anything in this section to the contrary notwithstanding, the Issuer 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 Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this section is subject to the provisions
of Section 9.05.
SECTION 3.04 Certificate of the Issuer. Within 120 days after the close
of the fiscal year ended December 31, 1999, and within 120 days after the close
of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief
certificate (which need not comply with Section 10.05) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's 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).
At the time such certificate is filed, the Issuer will also file with
the Trustee a letter or statement of the independent accountants who shall have
certified the financial statements of the Issuer for its preceding fiscal year
in connection with the annual report of the Issuer to its shareholders for such
year to the effect that, in making the examination necessary for certification
of such financial statements, they have obtained no knowledge of any default by
the Issuer in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, which default remains uncured at the date
of such letter or statement, or, if they shall have obtained knowledge of any
such uncured default, specifying in such letter or statement such default or
defaults and the nature and status thereof, it being understood that such
accountants shall not be
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liable directly or indirectly for failure to obtain knowledge of any such
default or defaults, and that nothing contained in this Section 3.04 shall be
construed to require such accountants to make any investigation beyond the scope
required in connection with such examination.
SECTION 3.05 Securityholders Lists. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the
payment of interest on such Securities, as hereinabove specified, 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 thirty days after receipt by the Issuer
of any such request as of a date not more than 10 days prior to the time such
information is furnished.
SECTION 3.06 Reports by the Issuer The Issuer covenants to:
(a) file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer is not required to file with
the Commission, annual reports, information, documents and other reports
pursuant to either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, then the Issuer will file with the Trustee and will file with the
Commission, in accordance with rules and regulations prescribed by the
Commission, such of the supplementary and periodic information, documents and
reports required pursuant to Section 13 of the Securities Exchange Act of 1934
in respect of a security listed and registered on a national securities exchange
as may be prescribed in such rules and regulations;
(b) file with the Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by the
Securities and Exchange Commission, such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations;
(c) transmit to the Securityholders, in the manner and to the extent
provided in Section 10.04, such summaries of any information, documents and
reports required to be filed with the Trustee pursuant to the provisions of
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subdivisions (a) and (b) of this Section 3.06 as may be required by the rules
and regulations of the Securities and Exchange Commission.
SECTION 3.07 Corporate Existence. So long as any of the Securities
remain unpaid, the Issuer will at all times (except as otherwise provided or
permitted elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations. So long
as any of the Securities remain unpaid, the Issuer will not consolidate or merge
with or sell, convey or lease all or substantially all of its property to any
other corporation except as permitted in Article 8 hereof.
SECTION 3.09 Further Assurances. From time to time whenever requested by
the Trustee, the Issuer will execute and deliver such further instruments and
assurances and do such further acts as may be reasonably necessary or proper to
carry out more effectually the purposes of this Indenture or to secure the
rights and remedies hereunder of the holders of the Securities of any series.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on
any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
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(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Securities of such series
(other than a covenant or warranty in respect of the Securities of such
series a default in whose performance or whose breach is elsewhere in
this section specifically dealt with), 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 Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of all series affected thereby, 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 Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
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 180 consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
(f) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such
series.
If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or
4.01(f) above 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 any affected series then
Outstanding hereunder (each such series voting as a separate class) by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of such series and the
interest accrued thereon, if
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any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. If an Event of Default described in
clauses 4.01(d) or 4.01(e) occurs and is continuing, then the principal amount
of all the Securities then outstanding and interest accrued thereon, if any,
shall be and become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by applicable
law.
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 Issuer 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 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, 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,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of 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 all the then outstanding Securities of all such series that
have been accelerated, each such series voting as a separate class, by written
notice to the Issuer and to the Trustee, may waive all defaults with respect to
such series (or with respect to all the Securities, as the case may be) 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.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all
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purposes hereunder, to be such portion of the principal thereof as shall be due
and payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have 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 all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal 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); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
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In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities 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, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) owing and unpaid in respect of
the Securities of any series, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of 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
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable
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compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor Trustee pursuant
to Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or 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 except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
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 proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities in respect of which such action was
taken.
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 in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.03 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities
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incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to
Section 5.06;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the 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 such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon 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; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or yield to maturity, without preference or
priority of principal over interest or yield to maturity, or of interest
or yield to maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate
of such principal and accrued and unpaid interest or yield to maturity;
and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.04 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may proceed to
protect and enforce the rights vested in it by this Indenture, either at law or
in equity or 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.
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SECTION 4.05 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.06 Limitations on Suits by Securityholder. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 4.09;
it being understood and intended, and being expressly covenanted by the Holder
of every Security with every other 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 or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other such 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. 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 4.07 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such
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payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.06, every power and remedy given by this Indenture 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 4.09 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate 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 with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction.
Nothing in this Indenture shall impair the right of the Trustee to take
any action which is not inconsistent with such direction or directions by
Securityholders.
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SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive an existing default or Event of Default, except a default in the
payment of Principal of or interest on any Security as specified in clauses (a)
or (b) of Section 4.01 or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.02. In the case of any such waiver, the Issuer, the
Trustee and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to Responsible Officers of the Trustee
which have occurred with respect to such series, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of 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, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion
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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 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 aggregate principal amount of the
Securities of such series, or, to any suit instituted by a Holder pursuant to
Section 4.07.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. 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 the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such 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.
(a) Prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
the Securities of any 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 as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(2) 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
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
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any such statements, 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) 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 wilful misconduct, except that:
(1) this subsection (b) shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the holders 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 shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein expressly provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
SECTION 5.02 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other 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 Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Issuer;
(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, suffered or omitted to be taken 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
trusts 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 might be incurred by it in connection with such
request, order or direction;
(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, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the
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security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee 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
(h) the Trustee shall not be liable for any action taken, suffered
or omitted in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture.
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, 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 the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.05 Moneys Held by Trustee. All moneys received by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing from time to time by the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express
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trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it 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 agents
and other persons not regularly in its employ) except to the extent any such
expense, disbursement or advance may arise from its negligence or bad faith. The
Issuer also covenants and agrees to indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss,
liability or expense is due to the negligence or bad faith of the Trustee or
such predecessor Trustee. The obligations of the Issuer under this section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee. Such additional indebtedness shall be a senior claim and
lien 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, and the Securities are hereby subordinated to such
senior claim. The parties agree that if the Trustee renders services following
an Event of Default under Section 4.01(d) or (e), compensation for such services
is intended to constitute administrative expense under any bankruptcy law.
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering 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, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.08 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939 and which has, or is a Wholly-Owned Subsidiary,
directly or
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indirectly of a bank holding company which has, a combined capital and surplus
of $50,000,000. If such corporation or holding company publishes reports of
condition at least annually, pursuant to law or to the requirements of a
Federal, State or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation or holding company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.09 Resignation and Removal; Appointment of Successor 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 resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor Trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, 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 six months may, subject to the provisions of
Section 4.12, 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
Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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
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property or affairs for the purpose of rehabilitation, conservation
or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. 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 each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided in Section 6.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 5.09 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor. Any successor
Trustee appointed as provided in Section 5.09 shall execute and deliver to the
Issuer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor 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 rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor Trustee, upon payment of its charges then unpaid,
the Trustee ceasing to act shall, subject to Section 5.06, pay over to the
successor Trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor Trustee all such
rights, powers, duties and obligations. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in
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and confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 5.06.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor 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 predecessor 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 trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor Trustee is
acting as Trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.08, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
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
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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 certificate 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,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to 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 5.12 Reports to the Trustee. (a) On May 15, 2000, and on or
before May 15 in every year thereafter, so long as any Securities are
Outstanding hereunder and as required by the Trust Indenture Act of 1939, the
Trustee shall transmit to the Securityholders and the Issuer, as hereinafter in
this Section 5.12 provided, a brief report dated as of the preceding March 15
with respect to:
(i) its eligibility under Section 5.08, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible under such
Section, a written statement to such effect; and
(ii) 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 4.11.
(b) Reports pursuant to this Section 5.12 shall be transmitted by mail
to all holders of Securities as the names and addresses of such holders appear
upon the registry books of the Issuer at the expense of the Issuer.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall
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become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if
made in the manner provided in this Article.
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved by the
certificate of any notary public or other officer authorized to take
acknowledgment of deeds, that the Person executing such instrument acknowledged
to such notary public or other such officer the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary public
or other officer. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other Person acting in
a representative capacity, such certificate or affidavit shall also constitute
sufficient proof of such Person's authority. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only holders of Securities of such
series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent.
SECTION 6.03 Holders to be Treated as Owners. Prior to due presentment
of a Security for registration of transfer, the Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, 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.
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SECTION 6.04 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities as to which the Trustee has received written notice are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 6.05 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
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 Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may
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be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors certified
to the Trustee, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article 8;
(b) 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 or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders of the Securities in any material respect;
(c) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(d) 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 5.10;
(e) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act
of 1939;
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(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to make any change that does not adversely affect the rights of
any Holder;
(h) as provided by or pursuant to a Board Resolution or indenture
supplemental hereto establishing the terms of one or more series of
Securities;
(i) to add to the covenants of the Issuer such new covenants,
restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the Holders of Securities, and with
respect to which the Trustee has received an Opinion of Counsel to a
similar effect, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default; provided,
that in respect of any such additional covenant, restriction, condition
or provision 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 an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default; or
(j) to make any change so long as no Securities are Outstanding.
The Trustee is hereby authorized to join with the Issuer 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, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.02.
SECTION 7.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 6) of the Holders of not less
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than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected
thereby:
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security;
(ii) reduce the Principal thereof or the rate of interest thereon,
or any premium payable with respect thereto;
(iii) change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable;
(iv) change the provisions for calculating the optional redemption
price, including the definitions relating thereto;
(v) make any change to Section 4.07 or 4.10 (except to include other
provisions subject to Section 4.10);
(vi) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with any provisions of this Indenture or any Defaults and
their consequences provided for in this Indenture;
(vii) alter or impair the right to convert any Security at the rate
and upon the terms provided in Article 13;
(viii) waive a default in the payment of Principal of or interest on
any Security of such Holder (except pursuant to a rescission of
acceleration pursuant to Section 4.01);
(ix) 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;
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(x) modify any of the provisions of this Section 7.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby; or
(xi) change or waive any provision that, pursuant to a board
resolution or indenture supplemental hereto establishing the terms of
one or more series of Securities, is prohibited to be so changed or
waived.
Upon the written request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.01, the Trustee shall join with the Issuer 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.
It shall not be necessary for the consent of the Securityholders under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Neither the Issuer nor any of its 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 Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
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SECTION 7.03 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, 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 Issuer 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 7.04 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 7 complies with the applicable provisions of
this Indenture.
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer 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 by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets 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 Subsidiary with a positive net
worth; provided that, in connection with any such merger of the Issuer with a
WhollyOwned Subsidiary, no consideration (other than common stock) in the
surviving person or the Issuer shall be issued or distributed to the
stockholders of the
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Issuer), unless (i) either (x) the Issuer shall be the continuing corporation,
or the successor corporation or (y) the Person formed by such consolidation or
into which the Issuer is merged or that acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be a
corporation or limited liability company organized under the laws of the United
States of America or any State thereof and shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities,
according to their tenor, 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 Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, (ii) immediately
after giving effect to such transaction, no default or Event of Default shall
have occurred and be continuing and (iii) the Issuer delivers 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 Section 8.01 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 the
Board of Directors, whose determination shall be evidenced by a board resolution
certified to the Trustee, the principal purpose of such transaction is to change
the state of incorporation of the Issuer; and provided further that any such
transaction shall not have as one of its purposes the evasion of the foregoing
limitations.
SECTION 8.02 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of 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 Securities had been issued at
the date of the execution hereof.
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In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 9.01, the Issuer may terminate its obligations under
the Securities of any series and this Indenture with respect to Securities of
such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 3.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Issuer, as provided in Section 9.05) have been
delivered to the Trustee for cancellation and the Issuer has paid all
sums payable by it hereunder; or
(ii) (A) the 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, (B) the Issuer irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities 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 and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay Principal
of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other
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sums payable by it hereunder, and (C) the Issuer delivers to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Issuer's obligations
under Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Issuer's
obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Issuer's obligations in
Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities of such
series and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
SECTION 9.02 Defeasance. Except as provided below, the Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute instruments in form and
substance satisfactory to the Issuer and the Trustee acknowledging the same);
provided that the following conditions shall have been satisfied:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds specifically pledged as security for, and dedicated
solely to, Holders of the Securities of such series, for payment of the
Principal of and interest on the 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 outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory to
the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is
bound;
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(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of the Issuer's exercise of its option under this Section
9.02 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 or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the
UCC; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 9.02 of the Securities of such series have been complied
with.
The Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09
and 9.05 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Issuer's obligations
in Sections 5.06 and 9.05 shall survive.
SECTION 9.03 Covenant Defeasance. The Issuer may omit to comply with any
term, provision or condition set forth in Section 3.04 (or any other specific
covenant relating to the Securities of any series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clause (c) of Section 4.01, with
respect to the outstanding Securities of such series if:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities
of such series, for payment of the Principal of and interest, if any, on
the Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount 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
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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 interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is
bound;
(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have
a valid security interest in the trust funds subject to no prior liens
under the UCC and (B) such Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
covenant defeasance 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; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the covenant defeasance
contemplated by this Section 9.03 of the Securities of such series have
been complied with.
SECTION 9.04 Application of Trust Money. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law. The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.01, 9.02 or 9.03, as the case may be, or the principal and interest received
in respect thereof, other than any such tax, fee or other charge that by law is
for the account of the Holders.
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SECTION 9.05 Repayment to Issuer. Subject to Sections 5.06, 9.01, 9.02
and 9.03, the Trustee and the Paying Agent shall promptly pay to the Issuer upon
request set forth in an Officers' Certificate any money held by them at any time
and not required to make payments hereunder and thereupon shall be relieved from
all liability with respect to such money. Subject to applicable escheat or
abandoned property laws, the Trustee and the Paying Agent shall pay to the
Issuer upon written request any money held by them and required to make payments
hereunder under this Indenture that remains unclaimed for two years; provided
that the Trustee or such Paying Agent before being required to make any payment
may cause to be published at the expense of the Issuer once in an Authorized
Newspaper or mail to each Holder entitled to such money at such Holder's address
(as set forth in the register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date of
such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Issuer. After payment to the Issuer, Holders entitled to
such money must look to the Issuer for payment as unsecured general creditors
unless an abandoned property law designates another Person, and all liability of
the Trustee and such Paying Agent with respect to such money shall cease.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any
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covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders. 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 to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Comcast Corporation at 1500 Market Street, Philadelphia,
Pennsylvania 19102-2148, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. 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 Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer
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shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent 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,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
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 (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.08 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
SECTION 10.09 Counterparts. 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 10.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01 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.
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SECTION 11.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed 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 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.
The notice of redemption to each such Holder shall specify the CUSIP
numbers of such Securities to be redeemed, the principal amount of each Security
of such series held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. 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 such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
written request, by the Trustee in the name and at the expense of the Issuer.
By 10:00 a.m. (New York City time) on the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.03) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
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In the case of the redemption of all of the Securities of a series
outstanding, the Issuer shall notify the Trustee in writing of the redemption
date 45 days (unless a shorter period shall be satisfactory to the Trustee)
prior to the redemption date.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in whole or in
part. Securities of a series may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 11.03 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities 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, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer 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 so called for redemption shall cease to
accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.04 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
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Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, 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 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.05 Mandatory and Optional Sinking Funds. 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
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so
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credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officer's Certificate shall be irrevocable and upon its receipt
by the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer shall so request in writing) with respect
to the Securities of any particular series, such cash shall be applied 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. If such amount shall be $50,000 or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 11.02, 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 shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Issuer or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Issuer or the Trustee, in
the name and at the expense of the Issuer (if the Issuer
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shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in the manner provided in Section 11.02
(and with the effect provided in Section 11.03) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or 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 if
the Trustee has received written notice thereof at least three Business Days
prior to any payment hereunder except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, if the Trustee has received written notice of such default or Event
of Default at least three Business Days prior to any payment hereunder, 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
deemed to have been collected under Article 4 and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this section to the redemption of such Securities.
SECTION 11.06 Conversion Arrangement on Call For Redemption. In
connection with any redemption of Securities, the Issuer shall deposit the
amount due in connection with such redemption as required by Section 11.02 or it
may arrange for the purchase and conversion of any Securities called for
redemption by
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an agreement with one or more investment bankers or other purchasers to purchase
such Securities and to make the deposit required of it by Section 11.02 on its
behalf by paying to the Trustee or the Paying Agent in trust for the
Securityholders, on or before 10:00 a.m. New York time on the redemption date,
an amount no less than the redemption price, together with interest, if any,
accrued to the redemption date of such Securities, in immediately available
funds. Notwithstanding anytime to the contrary contained in this Article 11, the
obligation of the Issuer to pay the redemption price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, any Securities not duly surrendered for conversion by
the holders thereof may, at the option of the Issuer, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article 13) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the last day on which Securities of such series called for
redemption may be converted in accordance with this Indenture and the terms of
such Securities, subject to payment of the above amount aforesaid. The Trustee
or the Paying Agent shall hold and pay to the Securityholders whose Securities
are selected for redemption any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the Trustee's and the Paying Agent's prior written consent, no
arrangement between the Issuer and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Issuer and such purchasers, including the costs and expenses
incurred by the Trustee and the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01 Agreement of Subordination. The Issuer covenants and
agrees, and each holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 12; and each Securityholder, whether upon
original issue
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or upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest on all
Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 12 shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 12.02 Payments to Securityholders. In the event and during the
continuation of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness continuing beyond the period of
grace, if any, specified in the instrument or lease evidencing such Senior
Indebtedness, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the Issuer
with respect to the principal of, or premium, if any, or interest on the
Securities, except sinking fund payments made by the acquisition of Securities
under Section 11.05 prior to the happening of such default and payments made
pursuant to Article 9 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such default.
Upon any payment by the Issuer, or distribution of assets of the Issuer
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
Issuer, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Securities (except
payments made pursuant to Article 9 hereof from monies deposited with the
Trustee pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of and kind or character, whether in cash, property or
securities, to which the holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article 12, shall (except as
aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior
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Indebtedness held by such holders, as calculated by the Issuer) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all 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 Senior Indebtedness, before any payment or distribution is made to
the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the holders of the Securities before all Senior Indebtedness 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 Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Issuer, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article 12, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer 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 12 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; provided that (i) the 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 the Senior Indebtedness (other than
leases) and of leases which are assumed are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Issuer with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of the Issuer 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 8 hereof shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 12.02 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 8 hereof. Nothing in this Section 12.02 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 5.06.
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SECTION 12.03 Subrogation of Securities. Subject to the payment in full
of all Senior Indebtedness, the rights of the holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Issuer
applicable to the 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 the Senior
Indebtedness of any cash, property or securities to which the holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 12, and no payment over pursuant to the provisions of this Article 12,
to or for the benefit of the holders of Senior Indebtedness by holders of the
Securities or the Trustee, shall, as between the Issuer, its creditors other
than holders of Senior Indebtedness, and the holders of the Securities, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 12 are and
are intended solely for the purpose of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Securities, the obligation of the Issuer, 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 Issuer other than
the holders of the Senior Indebtedness, 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 this Indenture, subject
to the rights, if any, under this Article 12 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article 12, the Trustee, subject to the provisions of Section 5.01, and the
holders of the Securities shall be entitled to 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, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the holders of the Securities, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 12.
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SECTION 12.04 Authorization by Securityholders. Each holder of a
Security by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 12 and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 12.05 Notice to Trustee. The Issuer shall give promptly written
notice to a Responsible Officer of the Trustee of any fact known to the Issuer
which 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 12.
Notwithstanding the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
12, unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Issuer 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 Section 5.01, shall be entitled in all respects to
assume that no such facts exist; provided that if on a date not fewer than three
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of (or premium, if any) or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 12.05, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth, nothing
shall prevent any payment by the Issuer or the Trustee to the Securityholders of
monies in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article 11 or Section 9.01 hereof prior to
the receipt by the Trustee of written notice as aforesaid, and (ii) such notice
of redemption is given not earlier than 60 days before the redemption date.
The Trustee conclusively shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of 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 Senior Indebtedness to participate in any payment or distribution
pursuant to this
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Article 12, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 12, 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 12.06 Trustee's Relation to Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article 12 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 elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to holders of Securities, the Issuer or any other Person money or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 12 or otherwise.
SECTION 12.07 No Impairment of Subordination. No right of any present or
future holder of any Senior Indebtedness 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 Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charge with.
SECTION 12.08 Rights of Trustee. Nothing in this Article 12 shall apply
to claims of or payments to, the Trustee pursuant to Section 5.06 or 9.04.
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ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.01 Applicability of Article. Securities of any series which
are convertible into Capital Stock at the option of the Securityholder shall be
convertible in accordance with their terms and (unless otherwise specified as
contemplated by Section 2.03 for Securities of any series) in accordance with
this Article. Each reference in this Article 13 to "a Security" or "the
Securities" refers to the Securities of the particular series that is
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Securities of any series are convertible refers to the class
of Capital Stock into which the Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 2.03). If
more than one series of Securities with conversion privileges are outstanding at
any time, the provisions of this Article 13 shall be applied separately to each
such series.
SECTION 13.02 Right of Securityholders to Convert Securities. Subject to
and upon compliance with the terms of the Securities and the provisions of
Section 11.06 and this Article 13, at the option of the holder thereof, any
Security of any series of any authorized denomination, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of $1,000,
may, at any time during the period specified in the Securities of such series,
or in case such Security or portion thereof shall have been called for
redemption, then in respect of such Security or portion thereof until and
including, but not after (unless the Issuer shall default in payment due upon
the redemption thereof) the close of business on the Business Day prior to the
date fixed for redemption except that in the case of redemption at the option of
the Securityholder, if specified in the terms of such Securities, such right
shall terminate upon receipt of written notice of the exercise of such option,
be converted into duly authorized, validly issued, fully paid and nonassessable
shares of the class of Class A Common Stock and Class A Special Common Stock, or
combination thereof, as specified in such Security, at the conversion rate for
each $1,000 principal amount of Securities (such initial conversion rate
reflecting an initial conversion price specified in such Security) in effect on
the conversion date, or, in case an adjustment in the conversion rate has taken
place pursuant to the provisions of Section 13.05, then at the applicable
conversion rate as so adjusted, upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Issuer at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 3.02, accompanied by a written notice
of election to convert as provided in Section 13.03 and, if so required by the
Issuer and the Trustee, by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by the registered
holder or his attorney
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duly authorized in writing. All Securities surrendered for conversion shall, if
surrendered to the Issuer or any conversion agent, be delivered to the Trustee
for cancellation and cancelled by it, or shall, if surrendered to the Trustee,
be cancelled by it, as provided in Section 2.10.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.05 or such other or different terms, if any, as may be
specified by Section 2.03 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of it.
SECTION 13.03 Issuance of Shares of Capital Stock on Conversion. As
promptly as practicable after the surrender, as herein provided, of any Security
or Securities for conversion, the Issuer shall deliver or cause to be delivered
at its said office or agency to or upon the written order of the holder of the
Security or Securities so surrendered a certificate or certificates representing
the number of duly authorized, validly issued, fully paid and nonassessable
shares of Capital Stock into which such Security or Securities may be converted
in accordance with the terms thereof and the provisions of this Article 13.
Prior to delivery of such certificate or certificates, the Issuer shall require
a written notice at its said office or agency from the holder of the Security or
Securities so surrendered stating that the holder irrevocably elects to convert
such Security or Securities, or, if less than the entire principal amount
thereof is to be converted, stating the portion thereof to be converted. Such
notice shall also state the name or names (with address and social security or
other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time
that such Security or Securities shall have been surrendered for conversion and
such notice shall have been received by the Issuer or the Trustee, the rights of
the holder of such Security or Securities as a Securityholder shall cease at
such time, the person or persons entitled to receive the shares of Capital Stock
upon conversion of such Security or Securities shall be treated for all purposes
as having become the record holder or holders of such shares of Capital Stock at
such time and such conversion shall be at the conversion rate in effect at such
time. In the case of any Security of any series which is converted in part only,
upon such conversion, the Issuer shall execute and the Trustee shall
authenticate and deliver to the holder thereof, as requested by such holder, a
new Security or Securities of such series of authorized denominations in
aggregate principal amount equal to the unconverted portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
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The Issuer will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 13.04 No Payment or Adjustment for Interest or Dividends. Unless
otherwise specified as contemplated by Section 2.03 for Securities of such
series, Securities surrendered for conversion during the period from the close
of business on any regular record date (or special record date for payment of
defaulted interest) next preceding any interest payment date to the opening of
business on such interest payment date (except Securities called for redemption
on a redemption date within such period) when surrendered for conversion must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive on such interest payment date. Payment of
interest shall be made, as of such interest payment date or such date, as the
case may be, to the holder of record of the Securities as of such regular, or
special record date, as applicable. Except where Securities surrendered for
conversion must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Issuer on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Security with original issue discount, the
fixed number of shares of Capital Stock into which such Security is convertible
delivered by the Issuer to the holder thereof shall be applied, first, to pay
the accrued original issue discount attributable to the period from the date of
issuance to the date of conversion of such Security, and, second, to pay the
balance of the principal amount of such Security.
SECTION 13.05 Adjustment of Conversion Rate. Unless otherwise specified
as contemplated by Section 2.03 for Securities of such series, the conversion
rate for Securities in effect at any time shall be subject to adjustment as
follows:
(a) In case the Issuer shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares, of the class of Capital Stock into which Securities of such
series are convertible (including any such reclassification in connection with a
consolidation or merger in which the Issuer is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution,
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or the effective date of such subdivision, combination or reclassification,
shall be proportionately adjusted so that the holder of any Security of such
series surrendered for conversion after such time shall be entitled to receive
the number and kind of shares which he would have owned or have been entitled to
receive had such Security been converted immediately prior to such time. Similar
adjustments shall be made whenever any event listed above shall occur.
(b) In case the Issuer shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock, so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (e) below) on the date on
which such issuance was declared or otherwise announced by the Issuer (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the number of shares of such class of Capital Stock
outstanding on the Determination Date plus the number of additional shares of
such class of Capital Stock offered for subscription or purchase (or in the case
of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Issuer owned
by or held for the account of the Issuer shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and to the extent that shares of such
class of Capital Stock are not delivered (or
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securities convertible into shares of such class of Capital Stock are not
delivered) after the expiration of such rights or warrants (or, in the case of
rights or warrants to purchase securities convertible into such class of Capital
Stock once exercised, the expiration of the conversion right of such securities)
the conversion rate shall be readjusted to the conversion rate which would then
be in effect had the adjustments made upon the issuance of such rights or
warrants (or securities convertible into shares) been made upon the basis of
delivery of only the number of shares actually delivered. In the event that such
rights or warrants are not so issued, the conversion rate shall again be
adjusted to be the conversion rate which would then be in effect if such record
date had not been fixed.
(c) In case the Issuer shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Securities
of such series are convertible (including any such distribution made in
connection with a consolidation or merger in which the Issuer is the continuing
corporation) of evidences of its indebtedness or assets (excluding any cash
dividends paid from retained earnings and dividends payable in Capital Stock for
which adjustment is made pursuant to subsection (a) above or (d) below) or
subscription rights or warrants (excluding subscription rights or warrants to
purchase the class of Capital Stock into which Securities of such series are
convertible), the number of shares of such class of Capital Stock into which
each $1,000 principal amount of Securities of such series shall be convertible
after such record date shall be determined by multiplying the number of shares
of such class of Capital Stock into which such principal amount of Securities
was convertible immediately prior to such record date by a fraction, of which
the numerator shall be the fair market value of the assets of the Issuer, after
deducting therefrom all liabilities of the Issuer and all preferences (including
accrued but unpaid dividends) in respect of classes of Capital Stock having a
preference with respect to the assets of the Issuer over such class of Capital
Stock (all as determined by the Board of Directors, whose determination shall be
conclusive, and described in a certificate signed by any vice chairmen of the
board, vice president or assistant vice president and treasurer of the Issuer,
filed with the Trustee and each conversion agent) on such record date, and of
which the denominator shall be such fair market value after deducting therefrom
such liabilities and preferences, less the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive, and described
in a statement filed with the Trustee and each conversion agent) of the assets
or evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
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(d) In case the Issuer shall, by dividend or otherwise, distribute to
all holders of its Capital Stock cash (excluding (x) any quarterly cash dividend
on the Capital Stock to the extent the aggregate cash dividend per share of
Capital Stock in any fiscal quarter does not exceed the greater of (A) the
amount per share of Capital Stock of the next preceding quarterly cash dividend
on the Capital Stock to the extent such preceding quarterly dividend did not
require any adjustment of the conversion rate pursuant to this Section 13.05(d)
(as adjusted to reflect subdivisions or combinations of the Capital Stock), and
(B) 3.75% of the current market price of the Capital Stock (determined as
provided in Section 13.05(e)) on the date of declaration of such dividend and
(y) any dividend or distribution in connection with the liquidation, dissolution
or winding up of the Issuer, whether voluntary or involuntary), then, in such
case, unless the Issuer elects to reserve such cash for distribution to the
holders of the Securities upon the conversion of the Securities so that any such
holder converting Securities will receive upon such conversion, in addition to
the shares of Capital Stock to which such holder is entitled, the amount of cash
which such holder would have received if such holder had, immediately prior to
the record date for such distribution of cash, converted its Securities into
Capital Stock, the conversion rate shall be adjusted so that the same shall
equal the rate determined by multiplying the conversion rate in effect
immediately prior to the record date by a fraction of which the denominator
shall be the current market price of the Capital Stock (determined as provided
in Section 13.05(e)) on the record date less the amount of cash so distributed
(and not excluded as provided above) applicable to one share of Capital Stock
and the numerator shall be such current market price of the Capital Stock
(determined as provided in Section 13.05(e)), such adjusted to be effective
immediately prior to the opening of business on the day following the record
date; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Capital Stock is equal to or greater than
the current market price of the Capital Stock (determined as provided in Section
13.05(e)) on the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Securityholder shall have the right to
receive upon conversion the amount of cash such holder would have received had
such holder converted each Security on the record date. If such dividend or
distribution is not so paid or made, the conversion rate shall again be adjusted
to be the conversion rate which would then be in effect if such dividend or
distribution had not been declared.
(e) For the purpose of any computation under subsections (b) and (d)
above and Section 13.06, the current market price per share of the Capital Stock
on any date as of which such price is to be computed shall mean the average of
the Closing Prices for the 30 consecutive Business Days commencing 45 Business
Days before such date.
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(f) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article 13 (other than this subsection (e)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution for United
States income tax purposes to the holders of Securities or the class of Capital
Stock into which such Securities are convertible. All calculations under this
Article 13 shall be made to the nearest cent or to the nearest one-thousandth of
a share, as the case may be. Anything in this Section 13.05 to the contrary
notwithstanding, the Issuer shall be entitled to make such adjustments in the
conversion rate, in addition to those required by this Section 13.05, as it in
its discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights to purchase stock or securities,
or distribution of securities convertible into or exchangeable for stock
hereafter made by the Issuer to its shareholders shall not be taxable for United
States income tax purposes.
(g) Whenever the conversion rate is adjusted, as herein provided, the
Issuer shall promptly file with the Trustee and with the office or agency
maintained by the Issuer for the conversion of Securities of such series
pursuant to Section 3.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Issuer) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Securityholder of
such series desiring to inspect the same. The Issuer shall promptly cause a
notice setting forth the adjusted conversion rate to be mailed to the holders of
Securities of such series, as their names and addresses appear upon the register
of the Issuer.
(h) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or in
lieu of shares of the class of Capital Stock into which such Securities are
convertible or as a result of an adjustment made pursuant to subsection (a)
above, the holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Issuer other than
shares of the class of Capital Stock into which the Issuer of such series are
convertible, thereafter the number of such other shares so receivable upon
conversion of any Security shall be subject to
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adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the class of Capital Stock into
which the Securities of such series are convertible contained in subsections (a)
to (f), inclusive, above, and the provisions of this Article 13 with respect to
the class of Capital Stock into which the Securities of such series are
convertible shall apply on like terms to any such other shares.
(i) The conversion rate with respect to any Securities with original
issue discount, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Security for accrued
original issue discount.
(j) In the event that the Securities of any series are convertible into
more than one class of Capital Stock, the provisions of this Section 13.05 shall
apply separately to events affecting each such class.
SECTION 13.06 No Fractional Shares to Be Issued. No fractional shares of
Capital Stock shall be issued upon conversions of Securities. If more than one
Security of any series shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Capital Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Issuer shall pay a cash adjustment in respect
of such fraction of a share in an amount equal to the same fractional interest
of the current market price (as defined in Section 13.05) per share of Capital
Stock on the Business Day next preceding the day of conversion.
SECTION 13.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Issuer with, or
merger of the Issuer into, any other corporation (other than a consolidation or
merger in which the Issuer is the continuing corporation), or in the case of any
sale or transfer of all or substantially all of the assets of the Issuer, the
corporation formed by such consolidation or the corporation into which the
Issuer shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Articles 7 and 8 as they
relate to supplemental indentures, providing that the holder of each Security
then Outstanding of a series which was convertible into Capital Stock shall have
the right thereafter to convert such Security into the kind and amount of shares
of stock and other securities and property, including cash, receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Capital Stock of the Issuer into
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which such Securities might have been converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental indenture shall
conform to the provisions of the Trust Indenture Act of 1939 as then in effect
and shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 13. Neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Securityholders upon the conversion of their Securities
after any such consolidation, merger, sale or transfer, or to any adjustment to
be made with respect there to and, subject to the provisions of Article 5, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, an Opinion of Counsel with respect thereto.
If in the case of any such consolidation, merger, sale or transfer, the stock or
other securities and property receivable by a holder of the Securities includes
stock or other securities and property of a corporation other than the successor
or purchasing corporation, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the holders of the Securities as the Board of
Directors shall reasonably consider necessary. The above provisions of this
Section 13.07 shall similarly apply to successive consolidations, mergers, sales
or transfers.
SECTION 13.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action. With respect to the Securities of any series, in case:
(a) the Issuer shall authorize the issuance to all holders of the class
of Capital Stock into which Securities of such series are convertible of rights
or warrants to subscribe for or purchase shares of its Capital Stock or of any
other right;
(b) the Issuer shall authorize the distribution to all holders of the
class of Capital Stock into which Securities of such series are convertible of
evidences of its indebtedness or assets (except for the exclusions with respect
to certain dividends set forth in Section 13.05(c));
(c) of any subdivision, combination or reclassification of the class of
Capital Stock into which Securities of such series are convertible or of any
consolidation or merger to which the Issuer is a party and for which approval by
the shareholders of the Issuer is required, or of the sale or transfer of all or
substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Issuer;
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then the Issuer shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 3.02, and shall cause to be mailed to the holders of
Securities of such series, at their last addresses as they shall appear upon the
register of the Issuer, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date as of which the holders of
such class of Capital Stock to be entitled to receive any such rights, warrants
or distribution are to be determined, or (ii) the date on which any such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to
become effective, and the date as of which it is expected that holders of record
of such class of Capital Stock shall be entitled to exchange their Capital Stock
of such class for securities or other property, if any, deliverable upon such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action. The failure to
give the notice required by this Section 13.08 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action, or the vote upon
any of the foregoing. Such notice shall also be published by and at the expense
of the Issuer not later than the aforesaid filing date at least once in an
Authorized Newspaper.
SECTION 13.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Issuer covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Issuer covenants that an shares of Capital Stock
which shall be so issuable shall, when issued or delivered, be duly and validly
issued shares of the class of authorized Capital Stock into which Securities of
such series are convertible, and shall be fully paid and nonassessable, free of
all liens and charges and not subject to preemptive rights and that, upon
conversion, the appropriate capital stock accounts of the Issuer will be duly
credited.
SECTION 13.10 Compliance with Governmental Requirements. The Issuer
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of such
Capital Stock, before
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such shares may be issued upon conversion, the Issuer will use its best efforts
to cause such shares to be duly registered, listed or approved, as the case may
be.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued Upon
Conversion. The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting
Securityholders for any tax (including, without limitation, all documentary and
stamp taxes) in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or in such names
as may be directed by, the holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the holder of the Security
converted, and the Issuer shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Issuer the amount of such tax or shall have
established to the satisfaction of the Issuer that such tax has been paid.
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be under any duty or
responsibility to any Securityholder to determine whether any facts exist which
may require any adjustment of the conversion rate or conversion price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the registration under
securities laws, listing, validity or value (or the kind or amount) of any
shares of Capital Stock, or of any other securities or property, which may at
any time be issued or delivered upon the conversion of any Security; and neither
the Trustee nor any conversion agent makes any representation with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible for
any failure of the Issuer to make any cash payment or to issue, transfer or
deliver any shares of stock or stock certificates or other securities or
property upon the surrender of any Security for the purpose of conversion; and
the Trustee, subject to the provisions of Article 5, and any conversion agent
shall not be responsible for any failure of the Issuer to comply with any of the
covenants of the Issuer contained in this Article 13.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the first date written above.
COMCAST CORPORATION
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
--------------------------------
BANKERS TRUST COMPANY
By:
-----------------------------------
[CORPORATE SEAL]
Attest:
By:
--------------------------------
EXHIBIT 4.3
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Corporation 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 Corporation 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: June 16, 1999
/s/ Donald J. Puglisi
-------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ William E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Trustee
EXHIBIT 4.4
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Corporation 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 Corporation 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: June 16, 1999
/s/ Donald J. Puglisi
-------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ William E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Trustee
EXHIBIT 4.5
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Corporation 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 Corporation 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: June 16, 1999
/s/ Donald J. Puglisi
-------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ William E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Trustee
EXHIBIT 4.6
DECLARATION OF TRUST
Comcast Corporation Trust I
Dated as of June 16, 1999
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................1
ARTICLE 2
ORGANIZATION
SECTION 2.01. Name...........................................................4
SECTION 2.02. Office.........................................................4
SECTION 2.03. Purpose........................................................4
SECTION 2.04. Authority......................................................4
SECTION 2.05. Title to Property of the Trust ................................5
SECTION 2.06. Powers of the Trustees.........................................5
SECTION 2.07. Filing of Certificate of Trust.................................6
SECTION 2.08. Duration of Trust..............................................6
SECTION 2.09. Responsibilities of the Sponsor................................6
SECTION 2.10. Declaration Binding on Securities Holders......................7
ARTICLE 3
TRUSTEES
SECTION 3.01. Trustees.......................................................7
SECTION 3.02. Regular Trustees...............................................7
SECTION 3.03. Delaware Trustee...............................................8
SECTION 3.04. Institutional Trustee..........................................8
SECTION 3.05. Not Responsible for Recitals or Sufficiency of Declaration.....8
ARTICLE 4
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.01. Exculpation....................................................9
SECTION 4.02. Fiduciary Duty
....................................................................9
SECTION 4.03. Indemnification...............................................10
SECTION 4.04. Outside Businesses............................................14
<PAGE>
PAGE
ARTICLE 5
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.01. Amendments....................................................14
SECTION 5.02. Termination of Trust..........................................14
SECTION 5.03. Governing Law.................................................15
SECTION 5.04. Headings......................................................15
SECTION 5.05. Successors and Assigns........................................15
SECTION 5.06. Partial Enforceability........................................15
SECTION 5.07. Counterparts..................................................16
<PAGE>
DECLARATION OF TRUST
OF
Comcast Corporation Trust I
June 16, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June 16,
1999 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 1.01. 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;
<PAGE>
(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.
<PAGE>
"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
4.03(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.
"Institutional Trustee" has the meaning set forth in Section 3.04.
"Parent" means Comcast Corporation, a Pennsylvania 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" has the meaning set forth in Section 3.01.
"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
<PAGE>
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 2.01. Name.
The Trust created by this Declaration is named "Comcast Corporation
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 2.02. Office.
The address of the principal office of the Trust is c/o Comcast
Corporation, 1500 Market Street, Philadelphia, Pennsylvania 19102-2148. At any
time, the Regular Trustees may designate another principal office.
SECTION 2.03. 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 2.04. 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.
<PAGE>
SECTION 2.05. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.06. 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;
<PAGE>
(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 2.07. 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 2.08. 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 2.09. 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;
<PAGE>
(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 3.01. 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 3.02. 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.
<PAGE>
(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 3.03. 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 3.04. 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 3.05. 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
<PAGE>
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 4.01. 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 4.02. 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;
<PAGE>
(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 4.03. 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
<PAGE>
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
<PAGE>
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
<PAGE>
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).
(viii) 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.
(ix) 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
<PAGE>
obligation to indemnify as set forth in this Section 4.03(b) shall survive the
termination of this Declaration.
SECTION 4.04. 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 5.01. 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, the Delaware Trustee and the Sponsor.
SECTION 5.02. Termination of Trust.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
<PAGE>
(ii) 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;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) 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 5.03. 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 5.04. 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 5.05. 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 5.06. 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.
<PAGE>
SECTION 5.07. 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.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ William E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
-------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CORPORATION,
as Sponsor
By: /s/ William E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Vice President of Finance
EXHIBIT 4.7
DECLARATION OF TRUST
Comcast Corporation Trust II
Dated as of June 16, 1999
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................1
ARTICLE 2
ORGANIZATION
SECTION 2.01. Name...........................................................4
SECTION 2.02. Office.........................................................4
SECTION 2.03. Purpose........................................................4
SECTION 2.04. Authority......................................................4
SECTION 2.05. Title to Property of the Trust ................................5
SECTION 2.06. Powers of the Trustees.........................................5
SECTION 2.07. Filing of Certificate of Trust.................................6
SECTION 2.08. Duration of Trust..............................................6
SECTION 2.09. Responsibilities of the Sponsor................................6
SECTION 2.10. Declaration Binding on Securities Holders......................7
ARTICLE 3
TRUSTEES
SECTION 3.01. Trustees.......................................................7
SECTION 3.02. Regular Trustees...............................................7
SECTION 3.03. Delaware Trustee...............................................8
SECTION 3.04. Institutional Trustee..........................................8
SECTION 3.05. Not Responsible for Recitals or Sufficiency of Declaration.....8
ARTICLE 4
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.01. Exculpation....................................................9
SECTION 4.02. Fiduciary Duty
....................................................................9
SECTION 4.03. Indemnification...............................................10
SECTION 4.04. Outside Businesses............................................14
<PAGE>
ARTICLE 5
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.01. Amendments....................................................14
SECTION 5.02. Termination of Trust..........................................14
SECTION 5.03. Governing Law.................................................15
SECTION 5.04. Headings......................................................15
SECTION 5.05. Successors and Assigns........................................15
SECTION 5.06. Partial Enforceability........................................15
SECTION 5.07. Counterparts..................................................16
<PAGE>
DECLARATION OF TRUST
OF
Comcast Corporation Trust II
June 16, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June 16,
1999 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 1.01. 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;
<PAGE>
(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.
<PAGE>
"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
4.03(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.
"Institutional Trustee" has the meaning set forth in Section 3.04.
"Parent" means Comcast Corporation, a Pennsylvania 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" has the meaning set forth in Section 3.01.
"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
<PAGE>
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 2.01. Name.
The Trust created by this Declaration is named "Comcast Corporation
Trust II." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 2.02. Office.
The address of the principal office of the Trust is c/o Comcast
Corporation, 1500 Market Street, Philadelphia, Pennsylvania 19102-2148. At any
time, the Regular Trustees may designate another principal office.
SECTION 2.03. 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 2.04. 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.
<PAGE>
SECTION 2.05. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.06. 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;
<PAGE>
(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 2.07. 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 2.08. 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 2.09. 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;
<PAGE>
(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 3.01. 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 3.02. 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.
<PAGE>
(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 3.03. 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 3.04. 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 3.05. 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
<PAGE>
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 4.01. 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 4.02. 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;
<PAGE>
(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 4.03. 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
<PAGE>
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
<PAGE>
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
<PAGE>
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).
(viii) 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.
(ix) 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
<PAGE>
obligation to indemnify as set forth in this Section 4.03(b) shall survive the
termination of this Declaration.
SECTION 4.04. 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 5.01. 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, the Delaware Trustee and the Sponsor.
SECTION 5.02. Termination of Trust.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
<PAGE>
(ii) 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;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) 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 5.03. 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 5.04. 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 5.05. 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 5.06. 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.
<PAGE>
SECTION 5.07. 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.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ William E. Dordelman
--------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
--------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CORPORATION,
as Sponsor
/s/ William E. Dordelman
--------------------------------
Name: William E. Dordelman
Title: Vice President of Finance
EXHIBIT 4.8
DECLARATION OF TRUST
Comcast Corporation Trust III
Dated as of June 16, 1999
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
ORGANIZATION
SECTION 2.01. Name............................................................4
SECTION 2.02. Office..........................................................4
SECTION 2.03. Purpose.........................................................4
SECTION 2.04. Authority.......................................................4
SECTION 2.05. Title to Property of the Trust .................................5
SECTION 2.06. Powers of the Trustees..........................................5
SECTION 2.07. Filing of Certificate of Trust..................................6
SECTION 2.08. Duration of Trust...............................................6
SECTION 2.09. Responsibilities of the Sponsor.................................6
SECTION 2.10. Declaration Binding on Securities Holders.......................7
ARTICLE 3
TRUSTEES
SECTION 3.01. Trustees........................................................7
SECTION 3.02. Regular Trustees................................................7
SECTION 3.03. Delaware Trustee................................................8
SECTION 3.04. Institutional Trustee...........................................8
SECTION 3.05. Not Responsible for Recitals or Sufficiency of Declaration......8
ARTICLE 4
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.01. Exculpation....................................................9
SECTION 4.02. Fiduciary Duty.................................................9
SECTION 4.03. Indemnification...............................................10
SECTION 4.04. Outside Businesses............................................14
<PAGE>
PAGE
----
ARTICLE 5
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.01. Amendments....................................................14
SECTION 5.02. Termination of Trust..........................................14
SECTION 5.03. Governing Law.................................................15
SECTION 5.04. Headings......................................................15
SECTION 5.05. Successors and Assigns........................................15
SECTION 5.06. Partial Enforceability........................................15
SECTION 5.07. Counterparts..................................................16
ii
<PAGE>
DECLARATION OF TRUST
OF
Comcast Corporation Trust III
June 16, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
16, 1999 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 1.01. 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;
<PAGE>
(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.
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"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
4.03(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.
"Institutional Trustee" has the meaning set forth in Section 3.04.
"Parent" means Comcast Corporation, a Pennsylvania 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" has the meaning set forth in Section 3.01.
"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
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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 2.01. Name.
The Trust created by this Declaration is named "Comcast Corporation
Trust III." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 2.02. Office.
The address of the principal office of the Trust is c/o Comcast
Corporation, 1500 Market Street, Philadelphia, Pennsylvania 19102-2148. At any
time, the Regular Trustees may designate another principal office.
SECTION 2.03. 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 2.04. 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.
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SECTION 2.05. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.06. 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;
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(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 2.07. 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 2.08. 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 2.09. 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;
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(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 3.01. 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 3.02. 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.
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(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 3.03. 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 3.04. 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 3.05. 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
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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 4.01. 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 4.02. 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;
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(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 4.03. 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
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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
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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
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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).
(viii) 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.
(ix) 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
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obligation to indemnify as set forth in this Section 4.03(b) shall survive the
termination of this Declaration.
SECTION 4.04. 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 5.01. 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, the Delaware Trustee and the Sponsor.
SECTION 5.02. Termination of Trust.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
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(ii) 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;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) 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 5.03. 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 5.04. 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 5.05. 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 5.06. 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.
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SECTION 5.07. 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.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ William E. Dordelman
--------------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
--------------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CORPORATION,
as Sponsor
By: /s/ William E. Dordelman
-----------------------------------
Name: William E. Dordelman
Title: Vice President of Finance
EXHIBIT 4.9
AMENDED AND RESTATED DECLARATION
OF TRUST
COMCAST CORPORATION TRUST [_]
Dated as of __________ __, [ ]
<PAGE>
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.01. Definitions.....................................................2
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application................................8
SECTION 2.02. Lists of Holders of Securities..................................9
SECTION 2.03. Reports by the Institutional Trustee............................9
SECTION 2.04. Periodic Reports to Institutional Trust.........................9
SECTION 2.05. Evidence of Compliance with Conditions Precedent...............10
SECTION 2.06. Events of Default; Waiver......................................10
SECTION 2.07. Event of Default; Notice.......................................12
ARTICLE 3
ORGANIZATION
SECTION 3.01. Name...........................................................13
SECTION 3.02. Office.........................................................13
SECTION 3.03. Purpose........................................................13
SECTION 3.04. Authority......................................................13
SECTION 3.05. Title to Property of the Trust.................................14
SECTION 3.06. Powers and Duties of the Regular Trustees......................14
SECTION 3.07. Prohibition of Actions by the Trust and the Trustees...........17
SECTION 3.08. Powers and Duties of the Institutional Trustee.................18
SECTION 3.09. 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.........................................25
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.........25
SECTION 3.14. Duration of Trust..............................................25
SECTION 3.15. Mergers........................................................25
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PAGE
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ARTICLE 4
SPONSOR
SECTION 4.01. Sponsor's Purchase of Common Securities........................27
SECTION 4.02. Responsibilities of the Sponsor................................27
ARTICLE 5
TRUSTEES
SECTION 5.01. Number of Trustees.............................................28
SECTION 5.02. Delaware Trustee...............................................29
SECTION 5.03. Institutional Trustee; Eligibility.............................29
SECTION 5.04. Certain Qualifications of Regular Trustees and Delaware
Trustee Generally....................................................30
SECTION 5.05. Regular Trustees...............................................30
SECTION 5.06. Delaware Trustee...............................................31
SECTION 5.07. Appointment, Removal and Resignation of Trustees...............31
SECTION 5.08. Vacancies among Trustees.......................................33
SECTION 5.09. 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 6.01. Distributions..................................................35
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.01. General Provisions Regarding Securities........................35
SECTION 7.02. Paying Agent...................................................36
ARTICLE 8
TERMINATION OF TRUST
SECTION 8.01. Termination of Trust...........................................37
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ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.01. Transfer of Securities.........................................38
SECTION 9.02. Transfer of Certificates.......................................38
SECTION 9.03. Deemed Security Holders........................................38
SECTION 9.04. Book Entry Interests...........................................39
SECTION 9.05. Notices to Clearing Agency.....................................39
SECTION 9.06. Appointment of Successor Clearing Agency.......................40
SECTION 9.07. Definitive Preferred Securities Certificates...................40
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates..............41
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. Liability.....................................................41
SECTION 10.02. Exculpation...................................................42
SECTION 10.03. Fiduciary Duty................................................42
SECTION 10.04. Indemnification...............................................43
SECTION 10.05. Outside Businesses............................................47
ARTICLE 11
ACCOUNTING
SECTION 11.01. Fiscal Year...................................................47
SECTION 11.02. Certain Accounting Matters....................................47
SECTION 11.03. Banking.......................................................48
SECTION 11.04. Withholding...................................................48
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.01. Amendments....................................................49
SECTION 12.02. Meetings of the Holders of Securities; Action by Written
Consent..............................................................51
ARTICLE 13
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.01. Representations and Warranties of Institutional Trustee.......53
SECTION 13.02. Representations and Warranties of Delaware Trustee............54
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ARTICLE 14
MISCELLANEOUS
SECTION 14.01. Notices.......................................................55
SECTION 14.02. Governing Law.................................................56
SECTION 14.03. Intention of the Parties......................................56
SECTION 14.04. Headings......................................................56
SECTION 14.05. Successors and Assigns........................................56
SECTION 14.06. Partial Enforceability........................................56
SECTION 14.07. Counterparts..................................................57
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
COMCAST CORPORATION TRUST [ ]
--------- ---, [ ]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of __________ __, [ ], 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 Corporation
Trust [_] (the "Trust"), a trust under the Delaware Business Trust Act pursuant
to a Declaration of Trust dated as of June [ ], 1999 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on June [ ], 1999, 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.
<PAGE>
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.01. 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.
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"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 ___________, [ ] 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,
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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 Corporation, a Pennsylvania
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York 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).
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"Fiscal Year" has the meaning set forth in Section 11.01.
"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 June 1, 1999, 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).
"List of Holders" has the meaning set forth in Section 2.02(a).
"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.
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"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 ______, [ ], 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.
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"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 Corporation, a Pennsylvania 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.
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"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 2.01. 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.
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(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 2.02. 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 2.03. 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 2.04. 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
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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 2.05. 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 2.06. 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
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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.
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(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 2.07. 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.
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ARTICLE 3
ORGANIZATION
SECTION 3.01. Name.
The Trust is named "Comcast Corporation 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 3.02. Office.
The address of the principal office of the Trust is c/o Comcast
Corporation, 1500 Market Street, Philadelphia, Pennsylvania 19102-2148. On ten
Business Days' written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
SECTION 3.03. 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 3.04. 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.
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SECTION 3.05. 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 3.06. 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
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(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;
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(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
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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 3.07. 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
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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 3.08. 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
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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 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
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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 3.09. 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
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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
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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
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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
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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
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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 8
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:
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(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
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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 4.01. 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 4.02. Responsibilities of the Sponsor.
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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 5.01. 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
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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 5.02. 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 5.03. 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,
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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 5.04. 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 5.05. 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.
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(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 5.06. Delaware Trustee.
The initial Delaware Trustee shall be:
[_______________]
SECTION 5.07. 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
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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.
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(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 5.08. 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 5.04, 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 5.09. 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
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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.
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ARTICLE 6
DISTRIBUTIONS
SECTION 6.01. 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 7.01. 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
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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 7.02. 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.
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ARTICLE 8
TERMINATION OF TRUST
SECTION 8.01. 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.
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ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.01. 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 9.02. 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 9.03. 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.
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SECTION 9.04. 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 9.07 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 9.07 conflict
with any other provisions of this Declaration, the provisions of this Section
9.07 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 9.05. 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
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Holders to the Clearing Agency, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.06. 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 9.07. 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
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any stock exchange on which Preferred Securities may be listed, or to conform to
usage.
SECTION 9.08. 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 10.01. 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) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
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(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 10.02. 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 10.03. 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.
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(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 10.04. 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
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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
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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
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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
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obligation to indemnify as set forth in this Section 10.04(b) shall survive the
satisfaction and discharge of this Declaration.
SECTION 10.05. 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 11.01. 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 11.02. 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.
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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 11.03. 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 11.04. 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
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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 12.01. 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,
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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.
(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
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be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities.
(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 12.02. 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.
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(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,
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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 13.01. 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
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(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 13.02. 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 either: (i) 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 or (ii) a natural person who is a resident of the State of Delaware.
(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.
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ARTICLE 14
MISCELLANEOUS
SECTION 14.01. 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 Corporation Trust [_]
c/o Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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):
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Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 14.02. 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 14.03. 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 14.04. 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 14.05. 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 14.06. Partial Enforceability.
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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 14.07. 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.
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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 Delaware Trustee
[ ], as
Institutional Trustee
By:
-----------------------------------------
Name:
Title:
COMCAST CORPORATION,
as Sponsor
By:
-----------------------------------------
Name:
Title:
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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 _______, [ ] (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.
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(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 ________, [ ], and will be payable quarterly in arrears, on
[March 31, June 30, September 30, and December 31] of each year,
commencing on _______, [ ], 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.
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(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 ______, [ ], to the
Prospectus dated June [ ], 1999 (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.
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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.
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(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
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<PAGE>
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.
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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
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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
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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.
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(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
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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 2.06 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
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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.
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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
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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.
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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.
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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 CORPORATION TRUST [__]
____% Guaranteed Trust Preferred Securities
(liquidation amount $25 per Preferred Security)
COMCAST CORPORATION 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
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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 _______, [___], 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.
2
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of [ ], [ ].
COMCAST CORPORATION
TRUST [_]
By:
----------------------------------
Name:
Title: Regular Trustee
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[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 $25 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 ________, [ ], 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.
4
<PAGE>
The Preferred Securities shall be redeemable as provided in the
Declaration.
5
<PAGE>
-------------------
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)
1
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
COMCAST CORPORATION TRUST [_]
______% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
COMCAST CORPORATION 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 _______, [ ],
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.
1
<PAGE>
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.
2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of [ ], [ ].
COMCAST CORPORATION
TRUST [_]
By:
--------------------------------------
Name:
Title: Regular Trustee
3
<PAGE>
[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 $25
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 ________, [ ], 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.
<PAGE>
-------------------
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)
1
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
EXHIBIT 4.10
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS 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 SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
<PAGE>
COMCAST CORPORATION
[ ]% Note due [ ]
No. [ ] CUSIP No.:[ ]
$[ ]
COMCAST CORPORATION, a Pennsylvania corporation ("Company", which
term includes any successor corporation), for value received promises to pay to
[CEDE & CO.] or registered assigns, the principal sum of [ ] on [ ].
Interest Payment Dates: [ ] and [ ] (each, an "Interest
Payment Date"), commencing on [ ].
Interest Record Dates: [ ] and [ ] (each, an "Interest
Record Date").
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
COMCAST CORPORATION
By: _____________________________
Name:
Title:
Attest: _________________________
Name:
Title:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: [ ] BANK OF MONTREAL TRUST COMPANY,
as Trustee
By: _____________________________
Authorized Signatory
2
<PAGE>
(REVERSE OF SECURITY)
COMCAST CORPORATION
[ ] Note due [ ]
1. Interest.
COMCAST CORPORATION , a Pennsylvania corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. Cash interest on the Securities will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from [ ]. The Company will pay interest [semi-annually] in
arrears on each Interest Payment Date, commencing [ ]. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time
on demand at the rate borne by the Securities and on overdue installments of
interest (without regard to any applicable grace periods) to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Interest Record Date immediately preceding the Interest Payment
Date notwithstanding any transfer or exchange of such Security subsequent to
such Interest Record Date and prior to such Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
wire transfer of Federal funds (provided that the Paying Agent shall have
received written wire instructions by no later than the Interest Record Date
for such Interest Payment Date), or interest by check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent.
Initially, Bank of Montreal Trust Company (the "Trustee") will act as
Paying Agent. The Company may change any Paying Agent without notice to the
Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
June 1, 1999 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Company limited in aggregate
principal amount to $[ ].
3
<PAGE>
5. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Company may require a Holder, among other things , to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Company need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
7. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
8. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Securities and under the Indenture with respect to the Securities except for
certain provisions thereof, and may be discharged from obligations to comply
with certain covenants contained in the Securities and in the Indenture with
respect to the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
9. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Securities and the provision of
the Indenture relating to the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding, and any existing Default
or Event of Default or compliance with certain provisions may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture and the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities
or comply with any requirements of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act, or make any other
change that does not materially and adversely affect the rights of any Holder
of a Security.
10. Restrictive Covenant.
The Indenture contains a covenant that limits the ability of the
Company to merge or sell all or substantially all of its assets.
11. Defaults and Remedies.
If an Event of Default (other than certain bankruptcy Events of
Default with respect to the Company) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all of the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. If a bankruptcy
Event of Default with respect
4
<PAGE>
to the Company occurs and is continuing, all the Securities shall be
immediately due and payable immediately in the manner and with the effect
provided in the Indenture without any notice or other action on the part of the
Trustee or any Holder. Holders of Securities may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines
that withholding notice is in their interest.
[12. Conversion.
Reference is made to the Indenture, including, without limitation,
provisions giving the holder of this Security the right to convert this
Security into Capital Stock of the Company on the terms and subject to the
limitations as more fully specified in the Indenture. Such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.]
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company as if it were not the Trustee.
14. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any of its successors shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
15. Authentication.
This Security shall not be valid until the Trustee manually signs the
certificate of authentication on this Security.
16. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
5
<PAGE>
18. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security thereof without regard to principles of conflicts of laws.
6
<PAGE>
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: __________________________ Signed: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: _________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
7
EXHIBIT 4.11
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS 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 SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
<PAGE>
COMCAST CORPORATION
[ ]% Subordinated Note due [ ]
No. [ ] CUSIP No.:[ ]
$[ ]
COMCAST CORPORATION, a Pennsylvania corporation ("Company", which
term includes any successor corporation), for value received promises to pay to
[CEDE & CO.] or registered assigns, the principal sum of [ ] on [ ].
Interest Payment Dates: [ ] and [ ] (each, an
"Interest Payment Date"), commencing on [ ].
Interest Record Dates: [ ] and [ ] (each, an
"Interest Record Date").
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
COMCAST CORPORATION
By: ______________________________
Name:
Title:
Attest: _________________________
Name:
Title:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: [ ] BANKERS TRUST COMPANY,
as Trustee
By: ______________________________
Authorized Signatory
2
<PAGE>
(REVERSE OF SECURITY)
COMCAST CORPORATION
[ ] Subordinated Note due [ ]
1. Interest.
COMCAST CORPORATION , a Pennsylvania corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. Cash interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from [ ]. The Company will pay interest [semi-annually] in arrears on
each Interest Payment Date, commencing [ ]. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time
on demand at the rate borne by the Securities and on overdue installments of
interest (without regard to any applicable grace periods) to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Interest Record Date immediately preceding the Interest Payment
Date notwithstanding any transfer or exchange of such Security subsequent to
such Interest Record Date and prior to such Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
wire transfer of Federal funds (provided that the Paying Agent shall have
received written wire instructions by no later than the Interest Record Date
for such Interest Payment Date), or interest by check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent.
Initially, Bankers Trust Company (the "Trustee") will act as Paying
Agent. The Company may change any Paying Agent without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
June 1, 1999 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general obligations of the Company limited in aggregate
principal amount to $[ ].
3
<PAGE>
5. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Company may require a Holder, among other things , to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Company need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
7. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its written request. After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.
8. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Securities and under the Indenture with respect to the Securities except for
certain provisions thereof, and may be discharged from obligations to comply
with certain covenants contained in the Securities and in the Indenture with
respect to the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
9. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Securities and the provision of
the Indenture relating to the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding, and any existing Default
or Event of Default or compliance with certain provisions may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture and the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities
or comply with any requirements of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act, or make any other
change that does not materially and adversely affect the rights of any Holder
of a Security.
10. Restrictive Covenant.
The Indenture contains a covenant that limits the ability of the
Company to merge or sell all or substantially all of its assets.
11. Defaults and Remedies.
If an Event of Default (other than certain bankruptcy Events of
Default with respect to the Company) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all of the Securities to be due and payable immediately
in the manner and with the effect provided in the Indenture. If a bankruptcy
Event of Default with respect
4
<PAGE>
to the Company occurs and is continuing, all the Securities shall be
immediately due and payable immediately in the manner and with the effect
provided in the Indenture without any notice or other action on the part of the
Trustee or any Holder. Holders of Securities may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines
that withholding notice is in their interest.
12. Subordination [and Conversion].
Reference is made to the Indenture, including, without limitation,
provisions subordinating the payment of principal of and premium, if any, and
interest on the Securities to the prior payment in full of all Senior
Indebtedness as defined in the Indenture [and provisions giving the holder of
this Security the right to convert this Security into Capital Stock of the
Company on the terms and subject to the limitations as more fully specified in
the Indenture. The initial conversion rate for this Security is [ ]. This
conversion rate is subject to modification as provided in the Indenture.] Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company as if it were not the Trustee.
14. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any of its successors shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
15. Authentication.
This Security shall not be valid until the Trustee manually signs the
certificate of authentication on this Security.
16. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers
5
<PAGE>
as printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
18. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security thereof without regard to principles of conflicts of laws.
6
<PAGE>
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: __________________________ Signed: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: _________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
7
EXHIBIT 4.13
PREFERRED SECURITIES GUARANTEE AGREEMENT
Comcast Corporation Trust [_]
Dated as of _______ __, [ ]
1
<PAGE>
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................................6
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.....................................7
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
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PAGE
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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
ii
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of _______ __, [ ], is executed and delivered by Comcast
Corporation, a Pennsylvania 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 Corporation Trust [_], a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ________, [ ], 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.
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01. 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
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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 subordinated debt securities of the
Guarantor designated the ___% [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.
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"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 June __, 1999, among the
Guarantor (the "Debenture Issuer") and Bankers 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.
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"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 2.01. 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.
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SECTION 2.02. 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 2.03. 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 2.04. 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 2.05. 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.
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SECTION 2.06. 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 2.07. 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 2.08. 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 3.01. Powers and Duties of the Preferred Guarantee Trustee.
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(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) The 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) No 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
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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 3.02. Certain Rights of Preferred Guarantee Trustee.
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(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
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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.
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(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 3.03. 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 4.01. 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
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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 4.02. 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.
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(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 5.01. 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 5.02. 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 5.03. 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;
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(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) any 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 5.04. 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
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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 5.05. Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.06. 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 5.07. 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.
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ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. 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 or the satisfaction of the obligations of the Guarantor pursuant to any
contract or security requiring the Guarantor to purchase shares of its Common
Stock, (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 6.02. 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 7.01. 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
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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 8.01. Exculpation.
(a) No 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) Each 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 8.02. 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
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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 9.01. 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 9.02. 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 9.03. 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
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(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 Corporation, 1500 Market Street, Philadelphia, Pennsylvania
19102-2148 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 9.04. 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 9.05. 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.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
COMCAST CORPORATION,
as Guarantor
By:______________________________
Name:
Title:
[ ],
as Preferred Guarantee Trustee
By:______________________________
Name:
Title:
21
EXHIBIT 4.16
[Form of Warrant Agreement for Warrants Sold Alone]
COMCAST CORPORATION
and
---------------------,
as Warrant Agent
-------------------------
WARRANT AGREEMENT
Dated as of ___________
------------------------
Warrants to Purchase ________
---------------------
<PAGE>
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
SECTION 2.01. Warrant Price..................................................4
SECTION 2.02. Duration of Warrants...........................................4
SECTION 2.03. Exercise of Warrants...........................................4
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.....................................6
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates......6
SECTION 3.03. Enforcement of Rights..........................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer..................7
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...........................9
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations.....................10
SECTION 5.03. Resignation and Appointment of Successor......................12
i
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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.....................................................14
SECTION 6.04. Applicable Law................................................14
SECTION 6.05. Delivery of Prospectus........................................14
SECTION 6.06. Obtaining of Governmental Approval............................15
SECTION 6.07. Persons Having Rights Under Warrant Agreement.................15
SECTION 6.08. Headings......................................................15
SECTION 6.09. 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
ii
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WARRANT AGREEMENT1
THIS AGREEMENT dated as of between COMCAST CORPORATION, a
corporation duly organized and existing under the laws of the State of
Pennsylvania (the "Company"), and , a [bank] [trust company] duly
incorporated and existing under the laws of , as Warrant Agent (the "Warrant
Agent"),
W I T N E S S E T H :
[WHEREAS, the Company has entered into an Indenture dated as of June
[ ], 1999 (the "Senior Indenture") between the Company and Bank of Montreal
Trust Company, as Trustee (the "Senior Indenture Trustee"), and an Indenture
dated as of June [ ], 1999 (the "Subordinated Indenture") between the Company
and Bankers Trust Company, as Trustee (the "Subordinated Indenture Trustee")
(together 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 securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such 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:
- --------
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 euro.
<PAGE>
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. 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 [_____ shares of the Warrant Securities] [ aggregate principal
amount of Warrant Securities].
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, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such
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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 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase [_____ shares of the Warrant Securities] [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 [_____shares of the Warrant Securities] [ 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
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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
SECTION 2.01. Warrant Price. Warrant Price. On , the
exercise price of each Warrant will be . During the period from ,
through and including , , the exercise price of each Warrant will be
[plus [accrued amortization of the original issue discount] [accrued interest]
from , .] On , , the exercise price of each Warrant will be .
During the period from , through and including , , the exercise
price of each Warrant will be [plus [accrued amortization of the original issue
discount] [accrued interest] from , .] [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] [ , ] and at or
before [time, location] on , (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. [With respect to Warrants
evidenced by Warrant Certificates in registered form, during] [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
4
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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. [Cashless Exercise Option].
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
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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
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] [the right to receive dividend payments on
the Warrant Securities or any voting rights].
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
6
<PAGE>
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 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 3.04. 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
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<PAGE>
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.
[Add Anti-Dilution provisions as necessary.]
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. 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.
8
<PAGE>
(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, 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 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
9
<PAGE>
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 5.01. 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
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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
11
<PAGE>
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
12
<PAGE>
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.
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<PAGE>
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
Corporation, 1500 Market Street, Philadelphia, Pennsylvania, 19102-2148,
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.
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<PAGE>
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.
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<PAGE>
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 CORPORATION
By__________________________
Name:
Title:
[WARRANT AGENT]
By__________________________
Name:
Title:
16
<PAGE>
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 _________, ____
COMCAST CORPORATION
Warrant Certificate representing
Warrants to purchase
[Title of Warrant 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 _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate principal amount of [Title of Warrant Securities]](the
"Warrant Securities") of Comcast Corporation (the "Company") [, issued or to
be issued under the Indenture (as hereinafter defined),] on the following
basis.2 [During the period from ________, ____ through and including
___________, ____, each Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the [principal]
amount of Warrant Securities stated
- --------
2 Complete and modify the following provisions as appropriate to
reflect the terms of the Warrants and the Warrant Securities.
A-1
<PAGE>
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 Securities][plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Securities or, if no interest shall have been paid on the Warrant Securities,
from ___________, ____]; [in each case, the original issue discount ($_______
for each $1,000 principal amount of Warrant 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 form
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 [ shares of]
Warrant Securities [in the principal amount of ] or any integral multiple
thereof. [Cashless Exercise Option].
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 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 __________, ____ (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 _______________].
A-2
<PAGE>
[The Warrant 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 Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
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 Securities,
including, without limitation, [the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Securities or to
enforce any of the covenants of the Indenture] [the right to receive dividend
payments on the Warrant Securities or any voting rights].
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.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated: _____________
COMCAST CORPORATION
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
A-4
<PAGE>
[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 [_______ shares
of [Title of Equity Securities]] [$_________ aggregate principal amount of the
[Title of Debt Securities]] (the "Warrant Securities") of Comcast Corporation
and represents that he has tendered payment for such Warrant 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 Corporation, c/o Treasurer in the amount of $___________ in accordance
with the terms hereof. The undersigned requests that said [principal] amount
of Warrant 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 Securities is less than all of
the Warrant 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__________________________
A-5
<PAGE>
__________________________
Signature________________________
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
This Warrant may be exercised at the following addresses:
By hand at ___________________
___________________
___________________
___________________
By mail at ___________________
___________________
___________________
___________________
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-6
<PAGE>
[[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
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
___________________________________________ ]
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Warrant Agent)
A-7
EXHIBIT 4.18
[Form of Warrant Agreement
For Warrant Sold Attached
To Securities]
COMCAST CORPORATION
and
---------------------,
as Warrant Agent
--------------------------
WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
----------------------------
<PAGE>
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
<PAGE>
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
ii
<PAGE>
WARRANT AGREEMENT1
THIS AGREEMENT dated as of between COMCAST CORPORATION, a
corporation duly organized and existing under the laws of the State of
Pennsylvania (the "Company"), and , a [bank] [trust company] duly
incorporated and existing under the laws of , as Warrant Agent (the
"Warrant Agent"),
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 June
[ ], 1999 (the "Senior Indenture") between the Company and Bank of Montreal
Trust Company, as Trustee (the "Senior Indenture Trustee"), and an Indenture
dated as of June [ ], 1999 (the "Subordinated Indenture") between the Company
and Bankers Trust Company, as Trustee (the "Subordinated Indenture Trustee")
(together, 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 securities being
offered] (the "Offered Securities") with one or more warrants (the "Warrants")
representing the right to purchase [title of such 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
- --------
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 euro.
<PAGE>
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 [_____ shares of the Warrant
Securities] [ aggregate principal amount of Warrant Securities ] 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 , (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
[_____ shares of the Warrant Securities] [ aggregate 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
2
<PAGE>
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 [_____ shares of the Warrant Securities] [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 [_____shares of the Warrant
Securities] [_____ aggregate principal amount of Warrant Securities] and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such
3
<PAGE>
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 , the exercise price of each
Warrant will be . During the period from , through and including
, , the exercise price of each Warrant will be [plus [accrued
amortization of the original issue discount] [accrued interest] from ,
.] On , the exercise price of each Warrant will be .
During the period from , through and including , , the
exercise price of each Warrant will be [plus [accrued amortization of the
original issue discount] [accrued interest] from , .] [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
4
<PAGE>
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] [ , ] and at or
before [time, location] on , (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. [Cashless Exercise Option]
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
5
<PAGE>
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.
6
<PAGE>
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] [the right to receive dividend payments on
the Warrant Securities or any voting rights].
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
7
<PAGE>
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.
[Add Anti-Dilution provisions as necessary.]
8
<PAGE>
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 also 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,
9
<PAGE>
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.]
10
<PAGE>
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
11
<PAGE>
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
12
<PAGE>
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).
13
<PAGE>
(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.
14
<PAGE>
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
Corporation, 1500 Market Street, Philadelphia, Pennsylvania, 19102-2148,
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.
15
<PAGE>
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.
16
<PAGE>
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 CORPORATION
By________________________
Name:
Title:
[WARRANT AGENT]
By________________________
Name:
Title:
17
<PAGE>
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 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 _________, ____
COMCAST CORPORATION
Warrant Certificate representing
Warrants to purchase
[Title of Warrant 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 _________, ____, and] on or before the close of business on
____________, ____, [____ shares of the [Title of Warrant Securities]]
[$________ aggregate
A-1
<PAGE>
principal amount of [Title of Warrant Securities]] (the "Warrant Securities")
of Comcast Corporation (the "Company")[, issued or to be issued under the
Indenture (as hereinafter defined),] on the following basis.2 [During the
period from ________, ____ through and including ___________, ____, each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company the [principal] amount of Warrant
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 Securities][plus accrued
interest, if any, from the most recent date from which interest shall have
been paid on the Warrant Securities or, if no interest shall have been paid on
the Warrant Securities, from ___________, ____]; [in each case, the original
issue discount ($_______ for each $1,000 principal amount of Warrant
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 form 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 [ shares of ] Warrant Securities [in the
principal amount of ] or any integral multiple thereof. [Cashless Exercise
Option]
The term "Holder" as used herein shall mean, prior to _________, ____
(the "Detachable Date"), the registered owner of the Company's [title of
Offered 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 Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate,
- --------
2 Complete and modify the following provisions as appropriate to
reflect the terms of the Warrants and the Warrant Securities.
A-2
<PAGE>
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 __________, ____ (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 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
Securities and in the Indenture. Copies of the Indenture, including the form
of the Warrant Securities, are on file at the corporate trust office of the
Trustee [and at _________________].]
Prior to ___________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered 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 Security.
Additionally, on or prior to the Detachable Date, each transfer of such
Offered Security on the register of the Offered 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 Securities,
including, without limitation, [the right to receive payments of principal of
(and premium, if
A-3
<PAGE>
any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture] [the right to receive dividend payments on the
Warrant Securities or any voting rights].
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 CORPORATION
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
A-4
<PAGE>
[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 [______ shares
of [Title of Warrant Securities]] [$_________ aggregate principal amount of
the [Title of Warrant Securities]] (the "Warrant Securities") of Comcast
Corporation and represents that he has tendered payment for such Warrant
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 Corporation, c/o Treasurer in the amount of
$___________ in accordance with the terms hereof. The undersigned requests
that said [principal] amount of Warrant 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 Securities is less than all of
the Warrant 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___________________
A-5
<PAGE>
___________________
Signature_________________
(Signed exactly as name appears
on the other side of this Warrant
Certificate)
This Warrant may be exercised at the following addresses:
By hand at ___________________
___________________
___________________
___________________
By mail at ___________________
___________________
___________________
___________________
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-6
<PAGE>
[[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
(Signed exactly as name appears on the
other side of this Warrant Certificate)
Signature Guarantee:
______________________________________]
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Warrant Agent)
A-7
EXHIBIT 4.20
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of __________, [ ] (this "Agreement"),
among Comcast Corporation, a Pennsylvania 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:
<PAGE>
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 Corporation 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.
2
<PAGE>
"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.
3
<PAGE>
"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
4
<PAGE>
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
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<PAGE>
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
6
<PAGE>
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
7
<PAGE>
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
8
<PAGE>
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
9
<PAGE>
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.
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<PAGE>
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
11
<PAGE>
(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
12
<PAGE>
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
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<PAGE>
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Comcast Corporation
By:
-----------------------------------------------
Name:
Title:
Address for Notices:
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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:
15
EXHIBIT 4.21
COMCAST CORPORATION
[ ]
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of __________, ____
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................1
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts..................................2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof.............................4
SECTION 2.03. Registration of Transfer of Receipts...........................4
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock...................................................5
SECTION 2.05. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of
Receipts................................................6
SECTION 2.06. Lost Receipts, Etc.............................................6
SECTION 2.07. Optional Redemption of Stock...................................6
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts................................................8
SECTION 3.01. Filing Proofs, Certificates and Other
Information.............................................8
SECTION 3.02. Payment of Taxes or Other Governmental
Charges.................................................8
SECTION 3.03. Warranty as to Stock...........................................9
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions.............................................9
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges...............................9
SECTION 4.03. Subscription Rights, Preferences or Privileges................10
SECTION 4.04. Notice of Dividends, Etc.; Fixing Record Date
for Holders of Receipts................................11
SECTION 4.05. Voting Rights.................................................11
<PAGE>
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc..............12
SECTION 4.07. Delivery of Reports...........................................13
SECTION 4.08. Lists of Receipt Holders......................................13
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar.....................13
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary or the Company..............................14
SECTION 5.03. Obligation of the Depositary and the Company..................14
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary....................15
SECTION 5.05. Corporate Notices and Reports.................................16
SECTION 5.06. Indemnification...............................................16
SECTION 5.07. Charges and Expenses..........................................17
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.....................................................18
SECTION 6.02. Termination...................................................18
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts..................................................19
SECTION 7.02. Exclusive Benefit of Parties..................................19
SECTION 7.03. Invalidity of Provisions......................................20
SECTION 7.04. Notices.......................................................20
SECTION 7.05. Depositary's Agents...........................................21
SECTION 7.06. Holders of Receipts Are Parties...............................21
SECTION 7.07. Governing Law.................................................21
SECTION 7.08. Inspection of Deposit Agreement...............................21
SECTION 7.09. Headings......................................................21
EXHIBIT A -- Form of Receipt
<PAGE>
DEPOSIT AGREEMENT dated as of _____, ___, among COMCAST CORPORATION, a
Pennsylvania corporation, [ ], a [ ] banking corporation, and the holders from
time to time of the Receipts described herein.
WHEREAS, it is desired to provide as hereinafter set forth in this
Deposit Agreement, for the deposit from time to time of shares of [specify
designation of Series of Preferred Stock], without par value, stated value $ per
share, of Comcast Corporation with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modification and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following definitions shall for all
purposes, unless otherwise indicated, apply to the respective terms used in this
Deposit Agreement:
"Certificate" shall mean the Certificate of Designation of Preferences
and Rights filed or to be filed with the Secretary of State of the State of
Pennsylvania establishing the Stock as a series of preferred stock, without par
value, of the Company.
"Company" shall mean Comcast Corporation, a Pennsylvania
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean [ ], or any successor as
Depositary hereunder.
<PAGE>
"Depositary Shares" shall mean Depositary Shares, each representing
[specify fraction] share(s) of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal corporate trust office
of the Depositary in [ ], at which at any particular time its depositary receipt
business shall be administered.
"Holder" as applied to a Receipt shall mean the person in whose name a
Receipt is registered on the books of the Depositary maintained for such
purpose.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or trust
company that shall be appointed to register ownership and transfers of Receipts
as herein provided as well as to effect transfers and the distribution of
dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's _____ Preferred Stock,
without par value, stated value $_____ per share.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts that are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other
<PAGE>
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the penultimate paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as are represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Deposit Agreement, and with respect to the Stock,
as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary and, if a Registrar
for the Receipts shall have been appointed, countersigned by the manual
signature of a duly authorized signatory of the Registrar; provided that no
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed manually
by a duly authorized signatory of the Depositary or, if a Registrar for the
Receipts shall have been appointed, by facsimile signature of a duly authorized
signatory of the Depositary and countersigned manually by a duly authorized
signatory of such Registrar. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered
<PAGE>
on the books of the Depositary as provided in Section 2.03, the Depositary may,
notwithstanding any notice to the contrary, treat the holder of record at such
time as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the number of Depositary
Shares representing the Stock so deposited and registered in such name or names
as may be requested by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Depositary's Office or such other
offices, if any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
__________ shares of Stock.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, including payment of the fees of
the Depositary as provided in Section 5.07, the Depositary shall register on its
books
<PAGE>
from time to time transfers of Receipts upon any surrender thereof by the holder
in person or by duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer. Thereupon the Depositary shall execute
a new Receipt or Receipts evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered and deliver
such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals. Upon payment of the fees of the Depositary for the withdrawal of
Stock as provided in Section 5.07 and payment of all taxes and without
unreasonable delay, the Depositary shall deliver to such holder or to the person
or persons designated by such holder as hereinafter provided, the number of
whole shares of Stock and all money and other property, if any, represented by
the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or pursuant to his order, upon payment of
the fees of the Depositary for the withdrawal of Stock as provided in Section
5.07 and payment of all taxes, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property, if any,
being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall execute
and
<PAGE>
deliver to the Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by such holder
for the withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. Lost Receipts, Etc. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the holder thereof shall have (i) filed with
the Depositary (a) a request for such execution and delivery before the
Depositary has received notice that the Receipt has been acquired by a bona fide
purchaser and (b) a sufficient indemnity bond (if so
<PAGE>
requested by the Depositary) and (ii) satisfied any other reasonable
requirements imposed by the Depositary.
SECTION 2.07. Optional Redemption of Stock. If the Company shall elect
to redeem shares of Stock pursuant to the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 45 days' notice of the date of such proposed redemption of Stock and of the
number of shares of Stock held by the Depositary to be redeemed. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price (determined pursuant to the Certificate) of the
Stock deposited with the Depositary to be redeemed, the Depositary shall redeem
(using the proceeds of such redemption) the Depositary Shares relating to such
Stock. The Depositary shall mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the Depositary
Shares relating to the Stock to be redeemed, not less than 30 days and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the holders on the record date fixed for such
redemption pursuant to Section 4.04 of the Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such holders as the same appear on
the records of the Depositary; but neither failure to mail any such notice to
one or more such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company shall provide the Depositary with such notice, and each such notice
shall state: (i) the record date for purposes of such redemption; (ii) the
Redemption Date; (iii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any holder are to be redeemed, the
number of Depositary Shares held by such holder to be so redeemed; (iv) the
redemption price; (v) the place or places where Receipts evidencing Depositary
Shares to be redeemed are to be surrendered for payment of the redemption price;
and (vi) that dividends in respect of the Stock represented by the Depositary
Shares to be redeemed will cease to accrue at the close of business on such
Redemption Date. In case fewer than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed shall be selected by lot or by
any other substantially equivalent method determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock called for redemption shall cease to accrue, the Depositary Shares
called for redemption shall be deemed no longer to be outstanding and all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the redemption price) shall, to the extent of such Depositary Shares,
cease and
<PAGE>
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be redeemed at
a redemption price per Depositary Share equal to five (5) times the redemption
price per share paid in respect of shares of Stock pursuant to the Certificate
plus all money and other property, if any, represented by such Depositary
Shares, including all amounts paid by the Company in respect of dividends that
on the Redemption Date have accrued on the shares of Stock to be so redeemed and
that have not theretofore been paid. The foregoing shall be subject further to
the terms and conditions of the Certificate.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the redemption
price for the Depositary Shares called for redemption, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not called for
redemption.
Except as provided in the preceding paragraph of this Section 2.07, the
Depositary shall not be required to transfer or exchange for another Receipt any
Receipt evidencing Depositary Shares called or being called for redemption in
whole or in part.
The Depositary shall remit to the Company any funds deposited by or for
the account of the Company for the purpose of redeeming any Depositary Shares
that the holders thereof have failed to redeem after two years from the date of
such deposit, without further action necessary on the part of the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may
<PAGE>
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer, redemption or exchange, of
any Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any property or rights or of the proceeds thereof
until such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to holders of Receipts on the
record date fixed pursuant to Section 4.04 (net of the fees of the Depositary as
provided in Section 5.07 hereof) such amounts of such dividend or distribution
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or
<PAGE>
distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such holders, or if for any
other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charges) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to such holders of Receipts
as provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities unless the Company
shall have provided an opinion of counsel stating that such securities have been
registered under the Securities Act or do not need to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the holders of Receipts in such manner as the Depositary may determine, either
by the issue to such holders of warrants representing such rights, preferences
or privileges or by such other method as may be determined by the Depositary
with the approval of the Company; provided, however, that (i) if at the time of
issue or offer of any such
<PAGE>
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary may (with approval of the Company in any case
where the Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), if applicable laws or the terms of such
rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed by the Depositary to the
holders of Receipts entitled thereto as provided by Section 4.01 in the case of
a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered with respect to Stock, or
whenever the Depositary shall receive notice of (i) any meeting at which holders
of Stock are
<PAGE>
entitled to vote or of which holders of Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any shares of Stock, or whenever
the Depositary and the Company shall decide it is appropriate, the Depositary
shall in each such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to or otherwise in accordance
with the terms of the Stock) for the determination of the holders of Receipts
who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who shall
be entitled to notice of such meeting, or whose Depositary Shares are to be
redeemed or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the holders of Receipts entitled thereto a
notice that shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that such holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received, provided that the Depositary receives such instructions sufficiently
in advance of such voting to enable it to so vote or cause to be voted. The
Company hereby agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary will abstain from voting (but, in its discretion,
not from appearing at any meeting with respect to such Stock unless directed to
the contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either
<PAGE>
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments as are certified by the Company in the fraction of an interest
represented by one Depositary Share in one share of Stock as may be necessary
fully to reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such case
the Depositary may in its discretion, with the approval of the Company, execute
and deliver additional Receipts or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein notwithstanding, holders
of Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Stock or any such recapitalization, reorganization, merger, amalgamation
or consolidation to surrender such Receipts to the Depositary with instructions
to convert, exchange or surrender the Stock represented thereby only into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented by such
Receipts might have been converted or for which such Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of all holders of Receipts.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Stock, and at the offices of the Depositary's Agents, if any,
facilities for the
<PAGE>
delivery, registration of transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Stock, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such Exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Stock are listed on
one or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary
or the Company. Neither the Depositary nor the Company shall incur any liability
to any holder of any Receipt if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America or of any
other governmental authority or by reason of any provision, present or future,
of the Company's Restated Certificate of Incorporation, as amended (including
the Certificate) or of the Depositary Shares or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary or the Company shall be prevented or forbidden from, delayed in, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary or the Company incur liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any
<PAGE>
act or thing which the terms of this Deposit Agreement shall provide shall or
may be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in the
case of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
Where, by the terms of a distribution pursuant to Sections 4.01 or 4.02
of this Deposit Agreement, or an offering or distribution pursuant to Section
4.03 of this Deposit Agreement, or for any other reason, such distribution or
offering may not be made available to holders of Receipts, and the Depositary
may not dispose of such distribution or offering on behalf of such holders and
make the net proceeds available to such holders, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.03. Obligation of the Depositary and the Company. Neither the
Depositary nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts except that each
of them agrees (i) to use its best judgment and good faith in the performance of
such duties as are specifically set forth in this Deposit Agreement and (ii)
that it shall be liable for negligence or willful misconduct in the performance
of such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of the Stock, the Depositary Shares or the Receipts that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required.
Neither the Depositary nor the Company shall be liable for any action
or any failure to act by it in reliance upon the advice of legal counsel or
accountants, or information from any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and the Company may
each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes to perform such duties and only such duties as
are specifically set forth in this Deposit Agreement, and no implied covenants
or
<PAGE>
obligations shall be read into this Deposit Agreement against the Depositary.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
The Depositary undertakes not to issue any Receipt other than to
evidence the Depositary Shares then on deposit with the Depositary. The
Depositary also undertakes not to sell (except as provided herein), pledge or
lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering written notice of its election to do so to the Company,
such resignation to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and upon the written request of the Company, shall execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Stock and any moneys or property held hereunder
to such successor, and shall deliver to such successor a list of the holders of
all outstanding Receipts and such records, books and other information in its
<PAGE>
possession relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law or by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed, to be furnished to the holders of Receipts. Such
transmission will be at the Company's expense.
SECTION 5.06. Indemnification. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Depositary's
Agent against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Depositary's Agent or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or a
Depositary's Agent or their respective directors, employees, agents and
affiliates due to their negligence or bad faith. The obligations set forth in
this Section 5.06 shall survive the termination of this Deposit Agreement and
any succession or substitution of any Depositary.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification in writing (the
"indemnifying person") of the commencement of any action or claim in respect of
which indemnification may be sought promptly after such indemnified person
becomes aware of such commencement (provided that the failure to make such
notification shall not affect such indemnified person's rights under this
Section
<PAGE>
5.06) and shall consult in good faith with the indemnifying person as to the
conduct of the defense of such action or claim, which shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any such action
or claim without the consent of the indemnifying person.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of
the Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares and the registration of transfer of title to any Depositary
Shares. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it or the Company
is not otherwise liable hereunder, such holder will be liable for such charges
and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case, fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid by the Company upon consultation and
agreement between the Depositary and the Company as to the amount and nature of
such charges and expenses. The Depositary shall present its statement for
charges and expenses to the Company once every three months or at such other
intervals as the Company and the Depositary may agree.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Notwithstanding the
foregoing, in no event may any amendment impair the right of any holder of any
Receipts, upon surrender of such Receipts and subject to any conditions
specified in this Deposit Agreement, to receive shares of Stock and any money or
other property represented thereby, except in order to comply with mandatory
provisions of applicable law. Every holder of an outstanding Receipt at the time
any such amendment becomes effective in accordance with its terms shall be
<PAGE>
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by
the Company at any time upon not less than 60 days' prior written notice to the
Depositary, in which case, upon a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to holders of Receipts, upon surrender of the Receipt or Receipts held by such
holder, and upon payment of any applicable taxes or governmental charges, such
number of whole shares of Stock represented by such Receipt or Receipts. The
Depositary may likewise terminate this Deposit Agreement by mailing notice of
such termination to the Company and the holders of all Receipts then outstanding
if at any time 60 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04. If the holder of any Receipt or Receipts shall not
have surrendered such Receipt or Receipts in exchange for whole shares of Stock
on or prior to the effective date of termination of this Deposit Agreement, such
holder shall for all purposes, including the payment of dividends, be deemed to
be a holder of the appropriate number of whole shares of Stock previously
represented by such Receipt or Receipts and shall thereafter surrender to the
Company such Receipt or Receipts in exchange for whole shares of Stock.
If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to the Stock, shall sell rights as
provided in this Deposit Agreement, and shall continue to deliver such Stock,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of
termination, the Depositary may sell such Stock then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, without liability for interest, for the
pro rata benefit of the holders which have not theretofore surrendered their
Receipts. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
<PAGE>
Depositary for the surrender of a Receipt, any expenses for the account of the
holder of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges).
This Deposit Agreement shall automatically terminate after there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.01
or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary and any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at
<PAGE>
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Attention:
Telephone No.: (215) 665-1700
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office at [
], or at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to such holder at the address of
such holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, first class postage prepaid, in a post
office letter box. The Depositary or the Company may, however, without
liability, act upon any telegram or facsimile transmission received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
facsimile transmission shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action and shall
remain responsible for the performance of its obligations hereunder as if no
Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts such
appointments.
<PAGE>
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
COMCAST CORPORATION
By
-----------------------------
Name:
Title:
[ ]
By
------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING % PREFERRED STOCK OF
COMCAST CORPORATION
CUSIP_______________
INCORPORATED UNDER THE LAWS SEE REVERSE FOR CERTAIN DEFINITIONS
OF THE STATE OF DELAWARE.
[ ], as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction]
Preferred Stock, without par value, stated value $ per share (the "Stock"), of
Comcast Corporation, a Pennsylvania corporation (the "Corporation"), on deposit
with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of ________, ____ (the "Deposit Agreement"), among
the Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. By accepting this Depositary Receipt the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be valid
or obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized signatory or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
[ ] [ ]
Registrar Depositary
By By
<PAGE>
[FORM OF REVERSE OF RECEIPT]
COMCAST CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY SUCH REQUEST IS TO
BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
---------------------------
The following abbreviations, when used in the instructions on the face of this
receipt, shall be construed as though they were written out in full according to
applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian _______
(Minor) (Cust)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship -------------------------------
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above list. For
value received, _______ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
- --------------------------------------------------------------------------------
____________________________________Depositary Shares represented by the within
Receipt, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer the said Depositary Shares
on the books of the within named Depositary with full power of substitution in
the premises.
Dated:
----------------------
------------------------------------------------------------
NOTICE: The signature to the assignment must correspond with
the name as written upon the face of this Receipt in every
particular, without alteration or enlargement or any change
whatever
EXHIBIT 5.1
[LETTERHEAD OF COMCAST CORPORATION]
June 23, 1999
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Ladies and Gentlemen:
I am Senior Deputy General Counsel of Comcast Corporation, a
Pennsylvania corporation (the "Company") and have acted for the Company 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 the Company from time to time of up to $3,000,000,000 aggregate
principal amount of (i) senior debt securities and subordinated debt securities
(collectively, the "Debt Securities"), (ii) shares of preferred stock, without
par value (the "Preferred Stock"), (iii) shares of Class A common stock, $1.00
par value (the "Class A Common Stock"), (iv) shares of Class A special common
stock, $1.00 par value (the "Class A Special Common Stock") (v) warrants to
purchase Debt Securities, Preferred Stock, Class A Common Stock, Class A Special
Common Stock or other securities or rights ("Warrants"), (vi) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (x) the
Company's securities or securities of an entity unaffiliated or affiliated 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, (vii) preferred securities (the "Preferred Securities") of Comcast
Corporation Trust I, Comcast Corporation Trust II and Comcast Corporation 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"), (viii) units
("Units") consisting of Debt Securities, Warrants, Purchase Contracts, Preferred
Securities, Preferred Stock, Class A Common Stock or Class A Special Common
Stock or any combination of the foregoing and (ix) guarantees of the Preferred
Securities by the Company (the "Guarantees"). The Debt Securities, Preferred
Stock, Class A Common Stock, Class A Special Common Stock, Warrants, Purchase
Contracts, Preferred Securities, Units and Guarantees are herein collectively
referred to as the "Securities". The Debt Securities and the Preferred Stock may
be convertible and/or exchangeable for
<PAGE>
2
Securities or other securities or rights. The senior Debt Securities are to be
issued pursuant to an Indenture (the "Senior Indenture") dated as of June 15,
1999 between the Company and Bank of Montreal Trust Company, as Trustee. The
subordinated Debt Securities are to be issued pursuant to an Indenture (the
"Subordinated Indenture") dated as of June 15, 1999 between the Company and
Bankers Trust Company, as Trustee. The Senior Indenture and the Subordinated
Indenture are hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures". The Company may offer Depositary Shares (the
"Depositary Shares") representing interests in Preferred Stock deposited with a
Depositary and evidenced by Depositary Receipts, and such Depositary Shares are
also covered by the Registration Statement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as I have deemed
necessary or advisable for the purpose of rendering this opinion.
Based upon the foregoing, I am of the opinion that:
1. Upon designation of the preferences and relative,
participating, optional and other special rights, and qualifications,
limitations or restrictions, of any series of Preferred Stock by the
Board of Directors of the Company and proper filing with the Secretary
of State of the Commonwealth of Pennsylvania of a Certificate of
Designations relating to such series of Preferred Stock, all necessary
corporate action on the part of the Company will have been taken to
authorize the issuance and sale of such series of Preferred Stock
proposed to be sold by the Company, and when such shares of Preferred
Stock are issued and delivered against payment therefor in accordance
with the applicable underwriting or other agreement or upon conversion
in accordance with the terms of any other Security that has been duly
authorized, issued, paid for and delivered, such shares will be validly
issued, fully paid and non-assessable.
2. When the specific terms of any offering or offerings of
Class A Special Common Stock have been duly established by the Board of
Directors of the Company and in accordance with provisions of any
applicable underwriting agreement so as not to violate any applicable
law or agreement or instrument then binding on the Company, and shares
of the Class A Special Common Stock have been issued and sold against
payment therefor in accordance with the applicable underwriting or
other agreement or upon exchange in accordance with the terms of any
Security that has been duly authorized, issued, paid for and delivered,
such shares will be validly issued, fully paid and non assessable.
3. When the specific terms of any offering or offerings of
Class A Common
<PAGE>
Comcast Corporation 3 June 23, 1999
Stock have been duly established by the Board of Directors of the
Company and in accordance with provisions of any applicable
underwriting agreement so as not to violate any applicable law or
agreement or instrument then binding on the Company, and shares of the
Class A Common Stock have been issued and sold against payment therefor
in accordance with the applicable underwriting or other agreement or
upon exchange in accordance with the terms of any other Security that
has been duly authorized, issued, paid for and delivered, such shares
will be validly issued, fully paid and non-assessable.
4. When Depositary Shares evidenced by Depositary Receipts are
issued and delivered in accordance with the terms of a Deposit
Agreement against the deposit of duly authorized, validly issued, fully
paid and non-assessable shares of Preferred Stock, such Depositary
Shares will entitle the holders thereof to the rights specified in the
Deposit Agreement.
In connection with my opinions expressed above, I 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, (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. I 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.
I am a member of the Bar of the Commonwealth of Pennsylvania
and the foregoing opinion is limited to the laws of the Commonwealth of
Pennsylvania and the federal laws of the United States of America.
I hereby consent to the filing of t`his opinion as an exhibit
to the Registration Statement. In addition, I consent to the reference to me
under the caption "Legal Matters" in the prospectus.
<PAGE>
Comcast Corporation 4 June 23, 1999
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 my prior written
consent.
Very truly yours,
/s/ Arthur R. Block
-------------------------------
Arthur R. Block
Vice President and Senior
Deputy General Counsel
EXHIBIT 5.2
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, N.Y. 10017
June 23, 1999
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
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 Corporation, a Pennsylvania
corporation (the "Company") from time to time of up to $3,000,000,000 aggregate
principal amount of (i) senior debt securities and subordinated debt securities
(collectively, the "Debt Securities"), (ii) shares of preferred stock, without
par value (the "Preferred Stock"), (iii) shares of Class A common stock, $1.00
par value (the "Class A Common Stock"), (iv) shares of Class A special common
stock, $1.00 par value (the "Class A Special Common Stock") (v) warrants to
purchase Debt Securities, Preferred Stock, Class A Common Stock, Class A Special
Common Stock or other securities or rights ("Warrants"), (vi) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (x) the
Company's securities or securities of an entity unaffiliated or affiliated 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, (vii) preferred securities (the "Preferred Securities") of Comcast
Corporation Trust I, Comcast Corporation Trust II and Comcast Corporation 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"), (viii) units
("Units") consisting of Debt Securities, Warrants, Purchase Contracts, Preferred
Securities, Preferred Stock, Class A Common Stock or Class A Special Common
Stock or any combination of the foregoing and (ix) guarantees of the Preferred
Securities by the Company (the "Guarantees"). The Debt Securities, Preferred
Stock, Class A Common Stock, Class A Special Common Stock, Warrants, Purchase
Contracts, Preferred Securities, Units and Guarantees are herein collectively
referred to as the "Securities". The Debt Securities and the Preferred Stock may
be convertible and/or exchangeable for Securities or other securities or rights.
The senior Debt Securities are to be issued
<PAGE>
Comcast Corporation -2- June 23, 1999
pursuant to an Indenture (the "Senior Indenture") dated as of June 15, 1999
between the Company and Bank of Montreal Trust Company, as Trustee. The
subordinated Debt Securities are to be issued pursuant to an Indenture (the
"Subordinated Indenture") dated as of June15, 1999 between the Company and
Bankers Trust Comapny, as Trustee. The Senior Indenture and the Subordinated
Indenture are hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures". The Company may offer Depositary Shares (the
"Depositary Shares") representing interests in Preferred Stock deposited with a
Depositary and evidenced by Depositary Receipts, and such Depositary Shares are
also covered by 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 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 (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
equity principles).
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
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
equity principles).
<PAGE>
Comcast Corporation -3- June 23, 1999
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 (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and to
general equity principles).
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 (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
equity principles).
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 and the
federal laws of the United States of America.
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.
<PAGE>
Comcast Corporation -4- June 23, 1999
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 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
June 23, 1999
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Re: Comcast Corporation Trust I, Comcast Corporation Trust II
and Comcast Corporation Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Comcast
Corporation, a Pennsylvania corporation (the "Company"), Comcast Corporation
Trust I, a Delaware business trust ("Trust I"), Comcast Corporation Trust II, a
Delaware business trust ("Trust II"), and Comcast Corporation 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 June 16, 1999;
(b) The Certificate of Trust of Trust II, as filed with the
Secretary of State on June 16, 1999;
(c) The Certificate of Trust of Trust III, as filed with the
Secretary of State on June 16, 1999;
<PAGE>
Comcast Corporation
June 23, 1999
Page 2
(d) The Declaration of Trust of Trust I, dated as of June 16,
1999, among the Company and the trustees named therein;
(e) The Declaration of Trust of Trust II, dated as of June
16, 1999, among the Company and the trustees named
therein;
(f) The Declaration of Trust of Trust III, dated as of June
16, 1999, 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 June 21, 1999, 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.
<PAGE>
Comcast Corporation
June 23, 1999
Page 3
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.
<PAGE>
Comcast Corporation
June 23, 1999
Page 4
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, P.A.
GCK/ks
COMCAST CORPORATION EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES AND TO
COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
(dollars in millions)
<TABLE>
Three Months Ended March 31, Years Ended December 31,
---------------------------- -----------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (loss) before fixed charges(1):
Earnings (loss) from continuing operations
before extraordinary items and
cumulative effect of accounting changes $101.8 ($69.0) $1,007.7 ($182.9) ($6.4) $48.0 ($46.0)
Income tax expense (benefit) 87.4 6.4 594.0 70.4 109.0 91.3 (2.0)
Equity in net (income) loss of affiliates (1.1) 129.5 515.9 343.8 144.8 87.2 41.6
Fixed charges, less capitalized interest 111.2 120.4 466.7 458.9 448.4 450.0 254.8
-------- -------- -------- -------- -------- -------- --------
$299.3 $187.3 $2,584.3 $690.2 $695.8 $676.5 $248.4
======== ======== ======== ======== ======== ======== ========
Fixed Charges (1):
Interest expense $111.2 $120.4 $466.7 $458.9 $448.4 $450.0 $254.8
Capitalized interest - - - 18.0 32.1 6.4 -
-------- -------- -------- -------- -------- -------- --------
$111.2 $120.4 $466.7 $476.9 $480.5 $456.4 $254.8
======== ======== ======== ======== ======== ======== ========
Preference Security Dividend $11.5 $10.9 $44.8 $22.8 $1.1 - -
-------- -------- -------- -------- -------- -------- --------
Combined fixed charges and -------- -------- -------- -------- -------- -------- --------
preferred dividends $122.7 $131.3 $511.5 $499.7 $481.6 $456.4 $254.8
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges (2) 2.69 1.56 5.54 1.45 1.45 1.48 -
Ratio of earnings to combined fixed charges
and preferred dividends (2) 2.44 1.43 5.05 1.38 1.44 1.48 -
(1) For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income (loss) from continuing operations before income
taxes, extraordinary items, cumulative effect of accounting changes, equity
in net losses of affiliates and fixed charges. Fixed charges consist of
interest expense and capitalized interest. Combined fixed charges and
preferred stock dividends consist of fixed charges, as defined above, and
the amount of pre-tax earnings required to pay the dividends on our
preferred stock.
(2) Earnings were insufficient to cover fixed charges and combined fixed
charges and preferred stock dividends by $6.4 million for the year ended
December 31, 1994.
</TABLE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Comcast Corporation and its subsidiaries on Form S-3 of our reports dated
February 22, 1999, appearing in the Annual Report on Form 10-K of Comcast
Corporation and its subsidiaries for the year ended December 31, 1998 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
June 21, 1999
Philadelphia, Pennsylvania
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
QVC, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-3 of Comcast Corporation of our report dated February 3, 1999, with
respect to the consolidated balance sheets of QVC, Inc. and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of
operations and comprehensive income, shareholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1998 (such
consolidated financial statements are not separately presented herein), which
report is included as an exhibit to the Form 10-K of Comcast Corporation for the
year ended December 31, 1998. We also consent to the reference to us under the
heading "Experts" in the Prospectus.
/s/ KPMG LLP
Philadelphia, PA
June 18, 1999
EXHIBIT 25.1
================================================================================
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 13-4941093
(Jurisdiction of incorporation or 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 CORPORATION
(Exact name of obligor as specified in its charter)
Pennsylvania 23-1709202
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification
number)
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
(Address of principal executive offices)
--------------------------------------
Senior Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
- 2 -
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 23rd day of June, 1999.
BANK OF MONTREAL TRUST COMPANY
By: /s/ Amy S. Roberts
------------------------------
Amy S. Roberts
Vice President
<PAGE>
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
---------------------------------
ASSETS
Due From Banks $ 677,400
-----------
Investment Securities:
State & Municipal 16,513,582
Other 100
-----------
Total Securities 16,513,682
Loans and Advances
Federal Funds Sold 20,900,000
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
-----------
11,838,067
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
EXHIBIT 25.2
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a Identification no.)
U.S. national bank)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of
agent for service)
Comcast Corporation 23-1709202
(Exact name of Registrant as specified in its charter) (IRS employer
Identification no.)
1500 Market Street
Philadelpia, Pennsylvania 19102-2148
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of the securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1
Statement, Registration No. 333-25843 and
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 19,
1997, copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on November 18, 1997. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1998. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers 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 23rd Day
of June, 1999.
BANKERS TRUST COMPANY
By: /s/ Ednora G. Linares
-------------------------------
Ednora G. Linares
Assistant Vice President
-4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 27th day of June in the Year of our Lord
one thousand nine hundred and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
/s/ James T. Byrne, Jr.
-----------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
-----------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
-----------------------------
Lea Lahtinen
Sworn to before me this 19th day of June, 1997.
Sandra L. West
- -----------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
<PAGE>
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit
<PAGE>
program and the adequacy of the system of internal controls of the Company which
he deems advisable or which the Audit Committee may request. Additionally, the
General Auditor shall have the duty of reporting independently of all officers
of the Company to the Audit Committee at least quarterly on any matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company that should be brought to the attention of the directors
except those matters responsibility for which has been vested in the General
Credit Auditor. Should the General Auditor deem any matter to be of special
immediate importance, he shall report thereon forthwith to the Audit Committee.
The General Auditor shall report to the Chief Financial Officer only for
administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the
<PAGE>
President, and (ii) only if and to the extent that, after making such efforts as
the Chairman of the Board, the Chief Executive Officer or the President shall
deem adequate in the circumstances, such person shall be unable to obtain
indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Ednora G. Linares, Assistant Vice President of Bankers Trust Company, New
York, New York, hereby certify that the foregoing is a complete, true and
correct copy of the By-Laws of Bankers Trust Company, and that the same are in
full force and effect at this date.
/s/ Ednora G. Linares
-------------------------------------
ASSISTANT VICE PRESIDENT
DATED: June 23, 1999
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
---------------
| C400 |
--------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- -------------------------------------------------------------------------------------------------------------------------------
ASSETS | / / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ................. | 0081 2,772,000 |1.a.
b. Interest-bearing balances (2) .......................................... | 0071 2,497,000 |1.b.
2. Securities: | / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ............. | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ | 1773 8,907,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell...... | 1350 22,851,000 |3.
4. Loans and lease financing receivables: | / / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 21,882,000 | / / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses.....................RCFD 3123 620,000 | / / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve ........................RCFD 3128 0 | / / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) .................... | 2125 21,262,000 |4.d.
5. Trading Assets (from schedule RC-D) ....................................... | 3545 39,983,000 |5.
6. Premises and fixed assets (including capitalized leases) ................... | 2145 974,000 |6.
7. Other real estate owned (from Schedule RC-M) ............................... | 2150 80,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 97,000 |8.
9. Customers' liability to this bank on acceptances outstanding ............... | 2155 232,000 |9.
10. Intangible assets (from Schedule RC-M) ..................................... | 2143 278,000 |10.
11. Other assets (from Schedule RC-F) .......................................... | 2160 4,625,000 |11.
12. Total assets (sum of items 1 through 11) ................................... | 2170 104,558,000 |12.
-----------------------------
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC--Continued
--------------------
Dollar Amounts in Thousands | / / Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES | / / / / / / / / / |
13. Deposits: | / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 20,409,000 |13.a.
(1) Noninterest-bearing(1) ...................................RCON 6631 3,124,000 | / / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing .........................................RCON 6636 17,285,000 | / / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / |
part II) | RCFN 2200 20,167,000 |13.b.
(1) Noninterest-bearing ......................................RCFN 6631 1,781,000 | / / / / / / / / / |13.b.(1)
(2) Interest-bearing .........................................RCFN 6636 18,386,000 | / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 13,919,000 |14.
15. a. Demand notes issued to the U.S. Treasury ................................ | RCON 2840 0 |15.a.
b. Trading liabilities (from Schedule RC-D)................................. | RCFD 3548 26,175,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under | / / / / / / / / / |
capitalized leases): | / / / / / / / / / |
a. With a remaining maturity of one year or less ........................... | RCFD 2332 5,422,000 |16.a.
b. With a remaining maturity of more than one year through three years..... | A547 1,766,000 |16.b.
c. With a remaining maturity of more than three years....................... | A548 2,884,000 |16.c
17. Not Applicable. | / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding ................... | RCFD 2920 232,000 |18.
19. Subordinated notes and debentures (2)....................................... | RCFD 3200 984,000 |19.
20. Other liabilities (from Schedule RC-G) ..................................... | RCFD 2930 5,657,000 |20.
21. Total liabilities (sum of items 13 through 20) ............................. | RCFD 2948 97,615,000 |21.
22. Not Applicable | / / / / / / / / / |
| / / / / / / / / / |22.
EQUITY CAPITAL | / / / / / / / / / |
23. Perpetual preferred stock and related surplus .............................. | RCFD 3838 1,500,000 |23.
24. Common Stock................................................................ | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................... | RCFD 3839 541,000 |25.
26. a. Undivided profits and capital reserves .................................. | RCFD 3632 3,200,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | RCFD 8434 ( 36,000)|26.b.
27. Cumulative foreign currency translation adjustments ........................ | RCFD 3284 ( 389,000)|27.
28. Total equity capital (sum of items 23 through 27) .......................... | RCFD 3210 6,943,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)............... | RCFD 3300 104,558,000 |29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed Number
for the bank by independent external -----------
auditors as of any date during 1998 ................................................| RCFD 6724 N/A | M.1
-------------------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
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