AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1999
REGISTRATION NO. 333-90997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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UNITEDGLOBALCOM, INC.
(Exact name of registrant
as specified in its charter)
DELAWARE 84-1116217
(State of Incorporation (I.R.S. Employer
of Registrant) Identification Number)
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4643 SOUTH ULSTER STREET, SUITE 1300
DENVER, COLORADO 80237
(303) 770-4001
(Address, Including Zip Code and Telephone Number, Including Area Code, of
Registrant's Principal Executive Office)
MICHAEL T. FRIES
PRESIDENT
UNITEDGLOBALCOM, INC.
4643 SOUTH ULSTER STREET, SUITE 1300
DENVER, COLORADO 80237
(303) 770-4001
(Name, Address, Including Zip Code and Telephone Number,
Including Area Code, of Agent for Service)
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COPIES TO:
GARTH B. JENSEN, ESQ.
HOLME ROBERTS & OWEN LLP
1700 LINCOLN STREET, SUITE 4100
DENVER, COLORADO 80203
(303) 861-7000
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Approximate date of commencement of proposed sale to the public: As promptly as
practicable 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, 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, check the following box and list the
Securities
<PAGE>
Act registration statement number of 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 statement 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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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, as amended, or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
[OBJECT OMITTED]
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 it is not an offer to buy these securities +
+in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Prospectus subject to completion,
November 16, 1999
UNITEDGLOBALCOM, INC.
[LOGO]
$1,200,000,000
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The following are types of securities that we may offer and sell under this
prospectus:
- common stock (which may include shares being sold by certain of our
stockholders)
- debt securities
- preferred stock
We may offer these securities separately or as units which may include
other securities. We will describe in a prospectus supplement, which must
accompany this prospectus, the securities we are offering and selling, as well
as the specific terms of the securities. Those terms may include:
- Maturity - Redemption terms
- Interest rate - Listing on a securities exchange
- Sinking fund terms - Amount payable at maturity
- Currency of payments - Restrictive covenants
- Requirements to repurchase
the securities
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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We may offer the securities in amounts, at prices and on terms determined
at the time of offering. We 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.
___________, 1999
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Table of Contents
Page
UnitedGlobalCom, Inc. 3
Use of Proceeds 3
Ratio of Earnings to Fixed Charges 4
Description of Capital Stock 5
Description of the Debt Securities 8
Book-Entry Issuance 13
Selling Stockholders 15
Plan of Distribution 15
Legal Matters 17
Experts 17
Where You Can Find More Information 19
Incorporation of Certain Documents by Reference 20
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UnitedGlobalCom, Inc.
We are a leading broadband communications provider outside the United
States. We provide multi-channel television services in 22 countries worldwide
and telephone and Internet/data services in a growing number of our
international markets. Our operations are grouped into three major geographic
regions: Europe, Asia/Pacific and Latin America. Our European operations are
held through our approximately 55.1% owned, publicly traded subsidiary, United
Pan-Europe Communications N.V., which is the largest pan-European broadband
communications provider (multi-channel television, telephone and Internet/data)
in terms of numbers of subscribers. Our primary Asia/Pacific operations are
primarily held through our approximately 75.5% owned, publicly traded
subsidiary, Austar United, which owns the largest provider of multi-channel
television services in regional Australia, various Australian programming
interests and the only full service provider of broadband communications in New
Zealand. Our primary Latin American operation is VTR Hipercable S.A., Chile's
largest multi-channel television provider and a growing provider of telephone
services.
UnitedGlobalCom, Inc.
4643 South Ulster Street, Suite 1300
Denver, Colorado 80237
(303) 770-4001
Use of Proceeds
Except as may otherwise be described in the prospectus supplement
relating to an offering of securities, we will use the net proceeds from the
sale of the securities offered under this prospectus and the prospectus
supplement for possible repurchases or pay-down of our outstanding securities or
debt and for general corporate purposes, including working capital, acquisitions
and other business opportunities. Pending application of the proceeds, we may
invest the proceeds in short-term, interest-bearing investments. We will
determine any specific allocation of the net proceeds of an offering of
securities to a specific purpose at the time of the offering and will describe
the allocation in the related prospectus supplement. We will not receive any of
the proceeds from the sale of common stock by any selling stockholders.
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<TABLE>
<CAPTION>
Ratio of Combined Fixed Charges and Preferred Stock Dividends (000's)
For the Year For the Year For the Year For the Year For the Ten For the Nine
Ended Ended Ended Ended Months Ended Months Ended
February 28, February 29, February 28, February 28, December 31, September 30,
1995 1996 1997 1998 1998 1999
------------ ----------- --------------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) from continuing
operations before other items....... (25,583) (43,757) (95,608) (196,364) (492,776) 603,856
Fixed charges and preferred stock
dividends:
Interest, whether expensed or
capitalized......................... 9,328 36,045 79,659 124,288 163,227 234,712
Preferred stock dividend requirements. - 232 1,221 1,271 1,623 9,126
------------- ------------ --------- ----------- ------------- ---------
Total fixed charges and preferred
stock dividends..................... 9,328 36,277 80,880 125,559 164,850 243,838
Adjusted earnings (losses)............ (16,255) (7,480) (14,728) (70,805) (327,926) 847,694
Fixed charges and preferred
stock dividends..................... 9,328 36,277 80,880 125,559 164,850 243,838
------------- ------------ --------- ----------- ------------- ---------
Ratio of earnings to fixed charges
and preferred stock dividends....... - - - - - 3.48
Dollar amount of coverage deficiency.. (25,583) (43,757) (95,608) (196,364) (492,776) -
------------- ------------ --------- ----------- ------------- ---------
</TABLE>
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Description of Capital Stock
Our authorized capital stock consists of:
o 210,000,000 shares of Class A common stock,
o 30,000,000 shares of Class B common stock and
o 3,000,000 shares of preferred stock, all $0.01 par value per
share.
As of November 2, 1999, there were outstanding:
o 34,557,799 shares of Class A common stock,
o 9,661,970 shares of Class B common stock,
o 116,185 shares of Series B convertible preferred stock, Series B
and
o 425,000 shares of Series C convertible preferred stock.
On November 11, 1999, we announced a two-for-one stock split of our Class A
common stock and Class B common stock.
Common Stock
Our Class A common stock and Class B common stock are identical, except that:
o each share of Class A common stock entitles the holder to one
vote, and each share of Class B common stock entitles the
holder to ten votes, on each matter to be voted on by our
stockholders and
o each share of Class B common stock is convertible at the
option of the holder into one share of Class A common stock.
Class A common stock is not convertible into Class B common
stock.
Holders of the Class A common stock and the Class B common stock vote as one
class on all matters, including the election of directors, to be voted on by our
stockholders, with certain exceptions specified by the Delaware General
Corporation Law. Holders of the Class B common stock have the power to control
all matters requiring approval of our stockholders voting as a single class.
Holders of the Class A common stock and Class B common stock are entitled to
receive any dividends that are declared by our Board of Directors out of funds
legally available for that purpose. In the event of our liquidation, dissolution
or winding up, holders of Class A common stock and Class B common stock are
entitled to share in all assets available for distribution to holders of common
stock. Holders of Class A common stock and Class B common stock have no
preemptive rights. Our Restated Certificate of Incorporation provides that if
there is any dividend, subdivision, combination or reclassification of either
class of common stock, a proportionate dividend, subdivision, combination or
reclassification of the other class of common stock will be made at the same
time.
We have appointed ChaseMellon Shareholder Services as the transfer
agent and registrar for the Class A common stock.
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Preferred Stock
Our Series B preferred stock has an initial liquidation value of $212.50 per
share. The preference increases at a rate of 6.5% per annum, compounded
quarterly, and was $229.23 per share at October 31, 1999. Each share of Series B
preferred stock is convertible into the number of shares of Class A common stock
equal to the liquidation value at the time of conversion divided by $21.50. We
are required to redeem our Series B preferred stock on June 30, 2008.
Our Series C preferred stock has a liquidation value of $1,000 per share. Each
share of Series C preferred stock is convertible at any time at the option of
the holder into the number of shares of Class A common stock equal to the
liquidation value divided by $84.30 (subject to adjustment). The Series C
preferred stock is evidenced by depositary shres, each representing 1/20th of a
shares of Series C preferred stock. The purchasers of the Series C preferred
stock deposited $29.8 million into an account from which the holders will be
entitled to quarterly payments in an amount equal to $17.50 per preferred share
commencing on September 30, 1999 through June 30, 2000, in cash or Class A
common stock at our option. We have the right to require conversion or after
December 31, 2000 if the closing price of our Class A common stock has equaled
or exceeded 150% of the conversion price for at least 20 of 30 consecutive
trading days or after June 30, 2002 if the closing price has equaled or exceeded
130% of the conversion price for at least 20 of 30 consecutive trading days. We
have the option to redeem our Series C preferred stock on or after June 30,
2002.
We are authorized to issue 3,000,000 shares of preferred stock, of which 541,185
shares are issued and outstanding as of November 15, 1999. Our board of
directors is authorized, without any further action by the stockholders, to
determine the following for any unissued series of preferred stock:
o voting rights,
o dividend rights,
o dividend rates,
o liquidation preferences,
o redemption provisions,
o sinking fund terms,
o conversion or exchange rights,
o the number of shares in the series and
o other rights, preferences, privileges and restrictions and
In addition, the preferred stock could have other rights, including economic
rights senior to our common stock, so that the issuance of the preferred stock
could adversely affect the market value of our common stock. The issuance of
preferred stock may also have the effect of delaying, deferring or preventing a
change in control of us without any action by the stockholders. We have no
current plans to issue any preferred shares other than the Series B and Series C
preferred stock currently outstanding.
Certificate of Incorporation and Bylaws
The provisions of our certificate of incorporation and bylaws
summarized below may have an anti-takeover effect and may delay or prevent a
tender offer or takeover attempt that a stockholder might consider in its
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best interest, including attempts that might result in a premium over the market
price for the shares held by stockholders.
Our certificate of incorporation or bylaws provide:
o that directors can be removed from office only for cause and only
with the approval of 80% of the votes of outstanding shares of
stock entitled to vote in the election of directors,
o for a classified board of directors, with each class containing
as nearly as possible one-third of the number of directors on the
board and the members of each class serving for three-year terms,
o that vacancies on the board of directors may be filled only by
the remaining directors,
o that the stockholders may take action only at an annual or
special meeting of stockholders, and not by written consent of
the stockholders,
o that special meetings of stockholders generally can be called
only by the board of directorsr,
o that our stockholders may adopt, amend or repeal Bylaws only with
the approval of holders of at least 80% of the voting power, and
o for an advance notice procedure for the nomination, other than by
the board of directors or a committee of the board of directors,
of candidates for election as directors as well as for other
stockholder proposals to be considered at annual meetings of
stockholders. In general, we must receive notice of intent to
nominate a director or raise business at meetings not less than
30 nor more than 60 days before the meeting, and must contain
certain information concerning the person to be nominated or the
matters to be brought before the meeting and concerning the
stockholder submitting the proposal. The affirmative vote of the
holders of at least 80% of the voting power is required to amend
or repeal these provisions or to provide for cumulative voting.
Delaware General Corporation Law, Section 203
We are subject to Section 203 of the Delaware General Corporation Law,
which limits the ability of a publicly held Delaware corporation to consummate a
"business combination" with an "interested stockholder" for a period of three
years after the date such person became an "interested stockholder" unless:
o before such person became an interested stockholder, the board of
directors of the corporation approved the transaction in which
the interested stockholder became an interested stockholder or
approved the business combination;
o upon consummation of the transaction that resulted in the
interested stockholder's becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction commenced
(excluding shares held by directors who are also officers of the
corporation and certain shares held by employee stock plans); or
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o following the transaction in which such person became an
interested stockholder, the business combination is approved by
the board of directors of the corporation and authorized at a
meeting of stockholders by the affirmative vote of the holders of
66 2/3% of the outstanding voting stock of the corporation not
owned by the interested stockholder.
An "interested stockholder" generally is defined as a person who, together with
affiliates and associates, owns (or, within the prior three years, owned) 15% or
more of a corporation's outstanding voting stock.
For purposes of Section 203, the term "business combination" is defined broadly
to include:
o mergers with or caused by the interested stockholder;
o sales or other dispositions to the interested stockholder (except
proportionately with the corporation's other stockholders) of
assets of the corporation or a subsidiary equal to 10% or more of
the aggregate market value of the corporation's consolidated
assets or its outstanding stock;
o the issuance or transfer by the corporation or a subsidiary of
stock of the corporation or such subsidiary to the interested
stockholder (except for transfers in a conversion or exchange or
a pro rata distribution or other transactions that do not
increase the interested stockholder's proportionate ownership of
any class or series of the corporation's or such subsidiary's
stock); or
o receipt by the interested stockholder (except proportionately as
a stockholder), directly or indirectly, of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation or a subsidiary.
Description of the Debt Securities
The debt securities will be our direct, unsecured or secured
obligations and may be senior debt securities, senior subordinated debt
securities or junior subordinated debt securities. The total amount of
additional debt securities that we may issue is limited by covenants in our
existing debt instruments.
The debt securities will be issued under one or more indentures in the
form that has been filed as an exhibit to the registration statement of which
this prospectus is a part. The indentures will be subject to and governed by the
Trust Indenture Act of 1939.
We may issue the debt securities in one or more series. Specific terms
of each series of debt securities will be contained in resolutions of our board
of directors or in a supplemental indenture. The specific terms will be
described in a prospectus supplement.
All debt securities of one series need not be issued at the same time
and, unless otherwise provided in the prospectus supplement, we may issue
additional debt securities of the series without the consent of the holders.
The specific terms of the debt securities may include any of the
following:
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o the title of the debt securities and whether the debt securities are
senior debt securities, senior subordinated debt securities or junior
subordinated debt securities;
o the aggregate principal amount of the debt securities and any limit on
the aggregate principal amount;
o the price at which the debt securities will be issued;
o any right of the holders to convert the debt securities into stock,
including the initial conversion price and rate and the conversion
period and any limitations on the transferability of the stock
received on conversion;
o the dates on which the principal of the debt securities will be
payable;
o the interest rates, which may be fixed or variable;
o the dates from which any interest will accrue, the dates on which the
interest will be payable, the record dates for the interest payments,
the persons to whom the interest will be payable, and the manner of
calculating interest;
o any right of ours to extend the dates on which principal or interest
will be payable;
o the currency or currencies of payment of principal or interest;
o the terms applicable to any debt securities issued at a discount from
their stated principal amount;
o the terms, if any, pursuant to which any debt securities will be
subordinate to any of our debt;
o if the amount of payments of principal or interest is to be determined
by reference to an index or formula, or based on a coin or currency
other than that in which such debt securities are stated to be
payable, the manner in which such amounts are determined and the
calculation agent, if any, with respect thereto;
o the places where the principal and any interest will be payable, where
the debt securities may be surrendered for registration of transfer
and where notices to us regarding the debt securities and the
indenture may be served;
o any right of ours to elect to redeem the debt securities, including
the redemption prices and redemption periods;
o any obligation of ours to redeem the debt securities under any sinking
fund or similar provision or at the option of a holder, including the
redemption prices and redemption periods;
o the events that would cause us to be in default and the consequences
of default; and
o any discharge and release provisions of the indenture.
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The debt securities may be issued at a discount below their principal
amount and provide for less than the entire principal amount to be payable on
acceleration of the maturity. In that case, all material U.S. federal income
tax, accounting and other considerations applicable to the securities will be
described in the prospectus supplement.
Except as may be set forth in any prospectus supplement, the debt
securities will not contain any provisions that would limit our ability to incur
debt or that would protect holders of debt securities in the event of a change
of control of us. The prospectus supplement will contain information with
respect to any changes to the events of default that are described below.
Covenants
The prospectus supplement will describe any material covenants of a
series of debt securities.
Merger or Sale
We cannot consolidate or merge with or into, or transfer or lease all
or substantially all of our assets to, any person unless:
o we will be the continuing corporation or
o the successor corporation or person to which our assets are transferred
or leased is a U.S. corporation and assumes our obligations on the debt
securities and under the indenture. In addition, we cannot effect the
transaction unless immediately after, no Event of Default shall have
occurred and be continuing. Subject to certain exceptions, when the
person to which our assets are transferred or leased has assumed our
obligations under the debt securities and the indenture, we will be
discharged from all our obligations under the debt securities and the
indenture.
This covenant would not apply to any recapitalization transaction, a
change of control of us or a highly leveraged transaction, unless structured to
include a merger or consolidation or transfer or lease of all or substantially
all of our assets.
Events of Default
The prospectus supplement and each indenture will describe the events
that would cause us to be in default and the consequences of default, including
the following:
o failure to pay interest for 30 days after the date payment is due and
payable. A valid extension of an interest payment period by us in
accordance with the terms of the debt securities shall not constitute
a failure to pay interest;
o failure to pay principal or any premium on a debt security when due,
either at maturity, on any redemption, by declaration or otherwise;
o failure to make sinking fund payments when due;
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o failure to perform any other covenant for 90 days after notice that
performance was required; and
o our bankruptcy, insolvency or reorganization.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under the indenture. If an event of default relating to the
payment of interest, principal or any sinking fund installment with respect to
any series of debt securities shall have occurred and be continuing, the trustee
or the holders of not less than 25% in aggregate principal amount of the debt
securities of such series may declare the entire principal of all the debt
securities of the series to be due and payable immediately. If an event of
default involving certain events in bankruptcy, insolvency or reorganization of
us or another event of default under a particular series of debt securities
shall have occurred and be continuing, the trustee or the holders of not less
than 25% in the aggregate principal amount of each affected series of debt
securities may declare the entire principal amount of their respective debt
securities to be due and payable immediately. Subject to certain conditions, the
holders of not less than a majority in aggregate principal amount of the debt
securities of a series may rescind and annul any such declarations and
consequences with respect to such series.
The indenture imposes limitations on suits brought by holders of debt
securities against us. No holder of debt securities of any series may institute
any action against us under the indenture, except actions for payment of overdue
principal, premium, if any, or interest, unless:
o such holder has previously given to the trustee written notice of
default and continuance of such default,
o the holders of at least 25% in principal amount of the outstanding
debt securities of the affected series have requested that the trustee
institute the action,
o the requesting holders have offered the trustee reasonable indemnity
for expenses and liabilities that may be incurred by bringing such
action,
o the trustee has not instituted the action within 60 days of the
request and
o the trustee has not received inconsistent direction by the holders of
a majority in principal amount of the outstanding debt securities of
the series.
We will be required to file annually with the trustee a certificate,
signed by one of our officers stating whether or not such officer knows of any
default by us in the performance, observance or fulfillment of any condition or
covenant of the indenture.
Discharge, Defeasance and Covenant Defeasance
We can discharge certain obligations to holders of any series of debt
securities that have not already been delivered to the trustee for cancellation
and that have either become due and payable or are by their terms to become due
and payable within one year or are scheduled for redemption within one year. The
discharge may be affected by our irrevocably depositing with the trustee cash or
U.S. government obligations, as trust funds, in an
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amount certified to be sufficient to pay when due, whether at maturity, on
redemption or otherwise, the principal of, premium, if any, and interest on the
debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the prospectus supplement, we may also
discharge our obligations to holders of any series of debt securities at any
time ("defeasance"). We may be released with respect to any outstanding series
of debt securities from the obligations imposed by any covenants imposed by the
series of debt securities and certain provisions of the indenture, and we may
omit to comply with the covenants without creating an event of default
("covenant defeasance"). Defeasance and covenant defeasance may be effected only
if:
o we irrevocably deposit with the trustee cash or U.S. government
obligations, as trust funds, in an amount certified to be sufficient
to pay at maturity or on redemption the principal, premium, if any,
and interest on all outstanding debt securities of such series;
o we deliver to the trustee an opinion of counsel from a nationally
recognized law firm to the effect that the holders of such series of
debt securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance or covenant
defeasance and that defeasance or covenant defeasance will not
otherwise alter such holders' U.S. federal income tax treatment of
principal, premium, if any, and interest payments on such series of
debt securities and
o in the case of subordinated debt securities, no event or condition
shall exist that, under the subordination provisions applicable to
such series, would prevent us from making payments of principal of,
premium, if any, and interest on any of the subordinated debt
securities at the date of the irrevocable deposit referred to above or
at any time during the period ending on the 91st day after the deposit
date.
Although we may discharge or decrease our obligations under the
indenture as described in the two preceding paragraphs, we may not avoid, among
other things, our duty to register the transfer or exchange of any series of
debt securities, to replace any temporary, mutilated, destroyed, lost or stolen
series of debt securities or to maintain an office or agency in respect of any
series of debt securities.
Modification of the Indenture
The indenture provides that we and the trustee may enter into
supplemental indentures without the consent of the holders of debt securities
to:
o secure any debt securities,
o evidence the assumption by a successor corporation of our
obligations,
o add covenants for the protection of the holders of debt
securities,
o cure any ambiguity or correct any inconsistency in the indenture,
o establish the forms or terms of debt securities of any series and
o evidence and provide for the acceptance of appointment by a
successor trustee.
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The indenture also provides that we and the trustee may, with the
consent of the holders of not less than a majority in aggregate principal amount
of debt securities of all series then outstanding and affected, voting as one
class, add any provisions to, or change in any manner, eliminate or modify in
any way the provisions of, the indenture or modify in any manner the rights of
the holders of such debt securities. We and the trustee may not, however,
without the consent of the holder of each outstanding debt security affected
thereby:
o extend the final maturity of any debt security;
o reduce the principal amount or premium, if any;
o reduce the rate or extend the time of payment of interest;
o reduce any amount payable on redemption;
o change the currency in which the principal (other than as otherwise
may be provided with respect to such series), premium, if any, or
interest is payable;
o reduce the amount of the principal of any debt security issued with an
original issue discount that is payable on acceleration or provable in
bankruptcy;
o alter certain provisions of the Indenture relating to the debt
securities not denominated in U.S. dollars;
o impair the right to institute suit for the enforcement of any payment
on any debt security when due; or
o reduce the percentage of holders of debt securities of any series
whose consent is required for any modification of the indenture.
No Individual Liability of Incorporators, Shareholders, Officers or
Directors
The indenture provides that no incorporator and no past, present or
future shareholder, officer or director, of UGC or any successor corporation in
their capacity as such shall have any individual liability for any of our
obligations, covenants or agreements under the debt securities or the indenture.
Governing Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the state of New York.
Subordination
The prospectus supplement will describe any subordination provisions
and will define the senior debt to which the debt securities may be subordinated
and will set forth the approximate amount of senior debt outstanding as of the
end of UGC's most recent fiscal quarter.
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Book-Entry Issuance
Unless otherwise specified in the applicable prospectus supplement, DTC
will act as depositary for securities issued in the form of global securities.
The securities will be issued only as fully registered securities registered in
the name of Cede & Co., DTC's nominee. One or more fully registered global
securities will be issued for the securities representing in the aggregate the
total number of the securities, and will be deposited with or on behalf of DTC.
DTC is a limited purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the provisions of Section 17A of the Exchange Act. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts. This eliminates the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with direct
participants, either directly or through others. The rules applicable to DTC and
its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or
through direct participants, which will receive a credit for the securities on
DTC's records. The beneficial ownership interest of each actual purchaser of
each security is in turn recorded on the direct and indirect participants'
records. Beneficial owners will not receive written confirmation from DTC of
their purchases. However, beneficial owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the direct or indirect participants through
which the beneficial owners purchased securities. Transfers of ownership
interests in securities issued in the form of global securities are to be
accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in the securities, except if use of the book-entry
system for the securities is discontinued.
DTC has no knowledge of the actual beneficial owners of the securities
issued in the form of global securities. DTC's records reflect only the identity
of the direct participants to whose accounts the securities are credited, which
may or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their customers.
DTC delivers notices and other communications to direct participants,
by direct participants to indirect participants, and by direct participants and
indirect participants to beneficial owners under arrangements among them,
subject to any statutory or regulatory requirements.
Redemption notices will be sent to Cede & Co. as the registered holder
of securities issued in the form of global securities. If less than all of a
series of the securities are being redeemed, DTC's current practice is to
determine by lot the amount of the interest of each direct participant to be
redeemed.
14
<PAGE>
Although voting with respect to securities issued in the form of global
securities is limited to the holders of record of the securities, in those
instances in which a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to the securities. Under its usual procedures, DTC
would mail an omnibus proxy to the issuer of the securities as soon as possible
after the record date. The omnibus proxy assigns Cede & Co.'s consenting or
voting rights to those direct participants to whose accounts the securities are
credited on the record date, identified in a listing attached to the omnibus
proxy.
Payments for securities issued in the form of global securities will be
made by the issuer of the securities to DTC. DTC's practice is to credit direct
participants' accounts on the payment date in accordance with their holdings
shown on DTC's records unless DTC has reason to believe that it will not receive
payments on the payment date. Payments by participants to beneficial owners will
be governed by standing instructions and customary practices and will be the
responsibility of the participant and not of DTC, the trustee or us, subject to
any statutory or regulatory requirements. Payments to DTC are the responsibility
of the issuer of the securities, disbursements of the payments to direct
participants are the responsibility of DTC, and disbursements of the payments to
the beneficial owners are the responsibility of direct and indirect
participants.
DTC may discontinue providing its services as depository with respect
to any securities at any time by giving reasonable notice to the issuer of the
securities. In the event that a successor depositary is not obtained, individual
security certificates representing the securities are required to be printed and
delivered. We may decide to discontinue use of the system of book-entry
transfers through DTC or a successor depositary.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be accurate, but we
assume no responsibility for the accuracy of the information. We have no
responsibility for the performance by DTC or its participants of their
respective obligations as described in this prospectus or under the rules and
procedures governing their operations.
Selling Stockholders
Some of the shares of common stock being offered by this prospectus may be
offered by certain selling stockholders, including our officers or directors.
Identification of any such selling stockholder will be made in the applicable
prospectus supplement.
Plan of Distribution
We (and with respect to shares of common stock, the selling
stockholders) may sell any of the securities being offered in any one or more of
the following ways from time to time:
o through agents;
o to or through underwriters;
o through dealers; and
o directly by us.
15
<PAGE>
The distribution of the securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to the
prevailing market prices or at negotiated prices.
Offers to purchase securities may be solicited by agents designated by
us. Any agent involved in the offer or sale of the securities will be named, and
any commissions payable by us to the agent will be set forth, in the prospectus
supplement. Unless otherwise indicated in the prospectus supplement, the agent
will be acting on a reasonable best efforts basis for the period of its
appointment. The agent may be deemed to be an underwriter, as that term is
defined in the Securities Act of 1933, of the securities so offered and sold.
If securities are sold by means of an underwritten offering, we will
execute an underwriting agreement with underwriters at the time an agreement for
the sale is reached. In that case, the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the amounts
underwritten and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, will be set forth in
the prospectus supplement which will be used by the underwriters to make resales
of the securities. The underwriters will acquire securities for their own
account and may resell them from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriters at the time of sale. Securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by one or more underwriters. Unless otherwise
indicated in the prospectus supplement, the underwriting agreement will provide
that the obligations of the underwriters are subject to conditions precedent and
that the underwriters will be obligated to purchase all the securities if any
are purchased.
We may grant to the underwriters options to purchase additional
securities to cover any over-allotments at the initial public offering price,
with additional underwriting commissions or discounts, as may be set forth in
the prospectus supplement.
If a dealer is used in the sale of the securities, we will sell the
securities to the dealer as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of
resale. The dealer may be deemed to be an underwriter, as the term is defined in
the Securities Act, of the securities so offered and sold. The name of the
dealer and the terms of the transaction will be set forth in the prospectus
supplement.
Offers to purchase securities may be solicited directly by us and may
be sold by us directly to institutional investors or others, who may be deemed
to be underwriters within the meaning of the Securities Act with respect to any
resale. The terms of the sales will be described in the prospectus supplement.
If described in the prospectus supplement, securities may also be
offered and sold, in connection with a remarketing on their purchase, in
accordance with a redemption or repayment under their terms, or otherwise, by
one or more remarketing firms, acting as principals for their own accounts or as
agents for us. Any remarketing firm will be identified and its compensation and
the terms of any agreement with us will be described in the prospectus
supplement. Remarketing firms may be deemed to be underwriters, as that term is
defined in the Securities Act, in connection with the securities remarketed.
16
<PAGE>
If described in the prospectus supplement, we may authorize agents and
underwriters to solicit offers by certain institutions to purchase securities
from us at the public offering price set forth in the prospectus supplement
under delayed delivery contracts providing for payment and delivery on the date
or dates stated in the prospectus supplement. The delayed delivery contracts
will be subject to only those conditions set forth in the prospectus supplement.
A commission indicated in the prospectus supplement will be paid to underwriters
and agents soliciting purchases of securities under delayed delivery contracts
accepted by us.
Agents, underwriters, dealers and remarketing firms may be entitled
under agreements with us to indemnification by us against certain liabilities,
including liabilities under the Securities Act, or to contribution for payments
that the agents, underwriters, dealers and remarketing firms may be required to
make.
Each series of securities will be a new issue. Other than the Class A
common stock, which trades on the Nasdaq National Market(sm), new securities
will have no established trading market. We may elect to list any series of
securities on an exchange, and in the case of the common stock, on any
additional exchange, but, unless otherwise specified in the prospectus
supplement, we will not be obligated to do so. No assurance can be given as to
the liquidity of the trading market for any of the securities.
Agents, underwriters, dealers and remarketing firms may be customers
of, engage in transactions with, or perform services for, us and our
subsidiaries in the ordinary course of business.
Legal Matters
The validity of the common stock and the preferred stock and the status
of the debt securities as our binding obligations will be passed on for us by
Holme Roberts & Owen LLP, Denver, Colorado. Certain legal matters will be passed
on for any underwriters, agents and dealers by underwriters' counsel. We will
identify in a prospectus supplement underwriters' counsel and the legal matters
that underwriters' counsel will pass on for any underwriters.
Experts
Our consolidated financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement from
our Transition Report on Form 10-K for the ten months ended December 31, 1998,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said reports.
The consolidated financial statements of United International
Properties, Inc. incorporated by reference in this prospectus and elsewhere in
the registration statement from our Transition Report on Form 10-K for the ten
months ended December 31, 1998, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto. In that report, that firm states that with respect to the year ended
February 28, 1998, it did not audit the financial statements of Tele Cable de
Morelos S.A. de C .V. and related companies ("Megapo"), as of and for the year
ended December 31, 1997, an investment that is reflected in its consolidated
financial statements using the equity method of accounting. Instead its report
with respect to Megapo
17
<PAGE>
is based on the report of other auditors (Galaz, Gomez Morfin, Chavero, Yamazaki
S.C.). The reports referred to above have been incorporated by reference herein
in reliance upon the authority of those firms as experts in giving said reports.
The consolidated financial statements of UIH Europe, Inc. incorporated
by reference in this prospectus and elsewhere in the registration statement from
our Transition Report on Form 10-K for the ten months ended December 31, 1998,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said report.
The consolidated financial statements of United Telekabel Holding N.V.
as of December 31, 1998 and for the period from August 6, 1998 (inception) to
December 31, 1998 incorporated by reference in this prospectus and elsewhere in
the registration statement from our Transition Report on Form 10-K for the ten
months ended December 31, 1998 have been audited by Arthur Andersen, independent
auditors, as indicated in their report with respect thereto and are incorporated
by reference herein in reliance upon the authority of said firm as experts in
giving said report.
The consolidated financial statements of N.V. TeleKabel Beheer as of
December 31, 1998 and for the year then ended incorporated by reference in this
prospectus and elsewhere in the registration statement from our Form 8-K dated
June 28, 1999, have been audited by Arthur Andersen, independent accountants, as
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said report.
The consolidated financial statements of A2000 Holding N.V.
incorporated by reference in this prospectus and elsewhere in the registration
statement from our Form 8-K dated June 28, 1999, have been audited by Arthur
Andersen, independent auditors, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said report.
The consolidated financial statements of Kabel Plus a.s. and
subsidiaries as of December 31, 1998 incorporated by reference in this
prospectus and elsewhere in the registration statement from our Form 8-K dated
June 28, 1999, have been audited by Arthur Andersen s.r.o., independent public
accountants, as indicated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
The consolidated financial statements of N.V. TeleKabel Beheer as of
December 31, 1997 and 1996, and for the two years ended December 31, 1997 and
1996, and for the period from August 22, 1995 (date of incorporation) until
December 31, 1995 incorporated by reference in this prospectus and elsewhere in
the registration statement from our Form 8-K/A-1 dated February 17, 1999, have
been audited by PricewaterhouseCoopers N.V., independent accountants, as
indicated in their report with respect thereto and are incorporated by reference
herein in reliance upon the authority of said firm as experts in giving said
report.
The consolidated financial statements of @Entertainment, Inc.
incorporated by reference in this prospectus and elsewhere in the registration
statement from our Form 8-K dated June 28, 1999 and Form 8-K/A-1 dated July 30,
1999, have been audited by KPMG, independent auditors, as indicated in their
report with respect thereto and are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said report.
18
<PAGE>
Where You Can Find More Information
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission under the
Securities Exchange Act of 1934. You may read and copy this information at the
following locations of the SEC:
Judiciary Plaza, Room 10024 Seven World Trade Center,
450 Fifth Street, N.W. Street Suite 1300
Washington, D.C. 20549 New York, New York 10048
Citicorp Center
500 West Madison Street
Suite 1400
Chicago, Illinois 60661
You can also obtain copies of this information by mail from the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 10024, Washington D.C.
20549, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like us that file
electronically with the SEC. The address of that site is http://www.sec.gov. Our
Class A common stock is traded on the Nasdaq National Market(sm), and copies of
reports, proxy statements and other information can be inspected at the offices
of the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
We have filed with the SEC a registration statement on Form S-3 that
registers the securities we are offering. The registration statement, including
the attached exhibits and schedules, contains additional relevant information
about us and our securities. The rules and regulations of the SEC allow us to
omit certain information included in the registration statement from this
prospectus.
19
<PAGE>
Incorporation of Certain Documents by Reference
We have filed the following documents with the SEC (File No. 0-21974)
and these documents are incorporated in this prospectus by reference and made a
part hereof.
o Our Transition Report on Form 10-K for the ten months ended
December 31, 1998 (as amended by Form 10K/A filed June 24,
1999).
o Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
o Our Proxy Statement for a special meeting dated June 24, 1999,
filed June 21, 1999.
o Our Proxy Statement for our annual stockholders' meeting dated
August 5, 1999, filed August 5, 1999.
o Our Current Reports on Form 8-K dated February 17, 1999 (as
amended by Form 8K/A-1 filed on March 12, 1999), February 24,
April 29, June 16, June 28, July 6, July 23, July 30 (as
amended by Form 8K/A-1 filed on August 30, 1999), September 7,
1999 and November 12, 1999.
All documents subsequently filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date of this prospectus and
prior to the termination of the offering, shall be deemed to be incorporated by
reference in this prospectus and to be a part hereof from the dates of filing of
such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference in this prospectus modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
We will provide you without charge upon your written or oral request, a
copy of any and all of the information that has been incorporated by reference
in this prospectus (not including exhibits to such information unless such
exhibits are specifically incorporated by reference into such information). Any
such request should be directed to UnitedGlobalCom, Director of Finance, 4643
South Ulster Street, Suite 1300, Denver, Colorado 80237 (telephone number
303-770-4001).
20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by UGC in
connection with the issuance and distribution of the securities, other than
underwriting discounts and commissions. UGC will bear all of such expenses. All
the amounts shown are estimates, except the registration fee.
Securities and Exchange Commission Registration Fee..................$ 333,600
Fees and expenses of accountants..................................... 50,000
Fees and expenses of counsel ........................................ 50,000
Printing and engraving............................................... 25,000
Miscellaneous........................................................ 41,400
Total................................................................$ 500,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of UGC's Certificate of Incorporation and Article VI of
UGC's By-laws require UGC to indemnify, to the fullest extent authorized by
applicable law, any person who is or is threatened to be made a party to any
civil, criminal, administrative, investigative, or the action or proceeding
instituted or threatened by reason of the fact that he is or was a director or
officer of UGC or is or was serving at the request of UGC as a director,
officer, partner, trustee, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan.
Article VI of UGC's Certificate of Incorporation provides that, to the
fullest extent permitted by the Delaware General Corporation Law ("DGCL"),
directors of UGC shall not be liable to UGC or any of its stockholders for
monetary damages for breach of a fiduciary duty by such director.
Section 145 of the DGCL authorizes the indemnification of directors and
officers against liability incurred by reason of the fact that such person was a
director or officer and against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with defending any action seeking to establish such
liability if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation.
Indemnification is also authorized with respect to any criminal action or
proceeding where the officer or director had no reasonable cause to believe his
conduct was unlawful. No person shall be entitled to indemnification under the
DGCL, however, if such person shall have been adjudged to be liable to the
corporation unless the Court of Chancery or the court in which such action or
suit was brought determines that despite such adjudication of liability, such
person is fairly and reasonably entitled to indemnification.
The above discussion of our Certificate of Incorporation and By- laws
and Section 145 of the Delaware General Corporation Law is intended to be only a
summary and is qualified in its entirety by the full text of each of the
foregoing.
II-1
<PAGE>
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER EXHIBITS
1.1+ Form of Underwriting Agreement.
4.1 Second Restated Certificate of Incorporation of UGC filed June 4,
1993.(1)
4.2 Certificate of Amendment to the Certificate of Incorporation dated
February 7, 1994.(2)
4.3 Certificate of Designations with respect to Convertible Preferred Stock,
Series A of UGC.(3)
4.4 Restated Bylaws of UGC.(1)
4.5 Specimen of Class A Common Stock certificate of UGC.(1)
4.6+ Form of Certificate for shares of UGC's preferred stock.
4.7 Form of Indenture by and between UGC and Firstar BankN.A., as trustee.
5.1 Opinion of Holme Roberts & Owen LLP as to the legality of the issuance
of the securities.
12.1 Computation of ratios of earnings to fixed charges.
23.1 Consent of Independent Public Accountants--Arthur Andersen LLP
(UnitedGlobalCom, Inc.)
23.2 Consent of Independent Public Accountants--Arthur Andersen LLP
(United International Properties, Inc.)
23.3 Consent of Independent Auditors--Galaz, Gomez Morfin, Chavero,
Yamazaki, S.C. (Megapo Comunicaciones de Mexico, S.A. de C.V.)
23.4 Consent of Independent Public Accountants--Arthur Andersen LLP
(UIH Europe, Inc.)
23.5 Consent of Independent Public Accountants--Arthur Andersen & Co.
(United TeleKabel Holding N.V.)
23.6 Consent of Independent Public Accountants--Arthur Andersen (A2000
Holding N.V.)
23.7 Consent of Independent Public Accountants--Arthur Andersen s.r.o.
(Kabel Plus a.s.)
23.8 Consent of Independent Accountants--Arthur Andersen (N.V. TeleKabel
Beheer)
23.9 Consent of Independent Accountants--Pricewaterhouse Coopers N.V. (N.V.
TeleKabel Beheer)
23.10 Consent of Independent Auditors--KPMG (@Entertainment, Inc.)
23.11 The consent of Holme Roberts & Owen LLP is included in Exhibit 5.1.
24.1 Powers of Attorney.
25.1 Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act of 1939
- --------------
(1) Incorporated by reference from Amendment No. 1 to the Company's
Registration Statement on Form S-1 (File No. 33-61376) filed with the
Commission on June 23, 1993.
II-2
<PAGE>
(2) Incorporated by reference from Form 10-K for the year ended February 28,
1994 (File No. 0-21974).
(3) Incorporated by reference from the Form 8-K dated December 21, 1995 (File
No. 0-21974).
+ To be filed by a post-effective amendment to the Registration Statement
or incorporated by reference in the event of an offering of the specified
securities.
ITEM 17. UNDERTAKINGS.
(a) UGC hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-3
<PAGE>
(4) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by UGC pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(5) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains
a form of prospectus 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.
(b) UGC hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of UGC's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of UGC pursuant to any charter provision, by-law,
contract, arrangement, statute, or otherwise, UGC has been
advised that in the opinion of the 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
UGC of expenses incurred or paid by a director, officer or
controlling person of UGC in the successful defense of any
action, suit or proceeding) is asserted against UGC by such
director, officer or controlling person in connection with the
securities being registered, UGC will, unless in the opinion of counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
UGC hereby undertakes to file an application for the purpose of determining
the eligibility of the applicable trustee to act under subsection (a) of Section
310 of the Trust Indenture Act of 1939 ("Act") in accordance with the rules and
regulations of the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 amendment to its
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Denver, State of Colorado, on this 18th day of
November, 1999.
UnitedGlobalCom, Inc.,
a Delaware corporation
By: /s/ Michael T. Fries
------------------------------
Michael T. Fries
President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature
--------- Date
<S> <C> <C>
*
- ---------------------------------
Gene W. Schneider Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) November 18, 1999
/s/ Michael T. Fries
- --------------------------------- Director November 18, 1999
Michael T. Fries
*
- --------------------------------- November 18, 1999
Albert M. Carollo Director
*
- --------------------------------- November 18, 1999
John P. Cole, Jr. Director
*
- --------------------------------- Chief Financial Officer
Frederick G. Westerman III (Principal Financial Officer) November 18, 1999
*
- --------------------------------- Controller and Vice President
Valerie L. Cover (Principal Accounting Officer) November 18, 1999
*
- --------------------------------- November 18, 1999
Lawrence J. DeGeorge Director
*
- --------------------------------- November 18, 1999
John F. Riordan Director
II-5
<PAGE>
*
- --------------------------------- November 18, 1999
Curtis W. Rochelle Director
*
- --------------------------------- November 18, 1999
Mark L. Schneider Director
*
- --------------------------------- November 18, 1999
Gregory B. Maffei Director
*
- --------------------------------- November 18, 1999
John C. Malone Director
*
- --------------------------------- November 18, 1999
Tina M. Wildes Director
* By: /s/ Michael T. Fries
---------------------------
Michael T. Fries
Attorney-in-fact
</TABLE>
II-6
UNITEDGLOBALCOM, INC.
and
FIRSTAR BANK, N.A., as Trustee
Indenture
Dated as of ____________, 1999
Debt Securities
<PAGE>
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture
dated as of _______________, 1999 between
UNITEDGLOBALCOM, INC. and FIRSTAR BANK,
N.A., as Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
310(a)(1) and (2). . . . . . . . . . . . . . . . . . . . . . .6.9
310(a)(3) and (4). . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.14
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.14
311(c) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . .4.1 and 4.2
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.2
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.2
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.3
313(b)(1). . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . .4.3
313(c) . . . . . . . . . . . . . . . . 4.3, 5.11, 6.10, 6.11, 8.2
and 12.2
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . .3.5 and 4.2
314(b) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2). . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3). . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d). . . . . . . . . . . . . . . . . . . . . .6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
316(a)(1). . . . . . . . . . . . . . . . . . . . . . 5.9 and 5.10
316(a)(2). . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . .7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.7
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . 3.4(a) and (b)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED............................ 1
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY.................................. 5
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.. 6
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES............. 6
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES........ 9
SECTION 2.5 EXECUTION OF SECURITIES.......................... 11
SECTION 2.6 CERTIFICATE OF AUTHENTICATION.................... 12
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF
INTEREST......................................... 12
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE.............. 13
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND
STOLEN SECURITIES................................ 16
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. 17
SECTION 2.11 TEMPORARY SECURITIES............................ 17
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST.............. 18
SECTION 3.2 OFFICES FOR PAYMENTS, ETC...................... 18
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE 19
SECTION 3.4 PAYING AGENTS.................................. 19
SECTION 3.5 COMPLIANCE CERTIFICATES........................ 20
SECTION 3.6 CORPORATE EXISTENCE............................ 20
SECTION 3.7 MAINTENANCE OF PROPERTIES...................... 20
SECTION 3.8 PAYMENT OF TAXES AND OTHER CLAIMS.............. 21
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS.................................. 21
SECTION 4.2 REPORTS BY THE ISSUER.......................... 21
SECTION 4.3 REPORTS BY THE TRUSTEE......................... 21
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF
MATURITY; WAIVER OF DEFAULT.................................... 23
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT......................... 26
SECTION 5.3 APPLICATION OF PROCEEDS........................ 28
SECTION 5.4 SUITS FOR ENFORCEMENT.......................... 29
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS.................................... 29
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS....... 29
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS........................ 30
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT................. 30
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES............... 30
SECTION 5.10 WAIVER OF PAST DEFAULTS....................... 31
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT,
BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES..... 31
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS......................................... 32
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT............... 32
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE.................. 33
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF.. 34
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC............................... 34
SECTION 6.5 MONEYS HELD BY TRUSTEE......................... 34
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE
AND ITS PRIOR CLAIM............................. 35
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC. 35
SECTION 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING
INTERESTS FOR THE TRUSTEE...................... 35
SECTION 6.9 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS 35
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE... 35
SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR TRUSTEE............................. 36
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE 37
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE............. 38
SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE ISSUER.................................... 39
SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT........... 39
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS.... 40
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES..................................... 40
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS................ 40
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING.................................... 40
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN............ 41
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS................................ 41
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS................................ 42
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE............... 44
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE............... 44
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES..................................... 44
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. 45
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED.............. 45
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE...... 45
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE....... 46
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED
FOR PAYMENT OF SECURITIES..................... 49
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT...... 49
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING
AGENT UNCLAIMED FOR TWO YEARS................. 50
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS.. 50
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL
LIABILITY..................................... 50
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT
OF PARTIES AND HOLDERS OF SECURITIES AND
COUPONS....................................... 50
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE..................................... 51
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
HOLDERS OF SECURITIES AND COUPONS............. 51
SECTION 11.5 OFFICER'S CERTIFICATES AND OPINIONS OF
COUNSEL; STATEMENTS TO BE CONTAINED
THEREIN....................................... 52
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS 53
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT................................. 53
SECTION 11.8 NEW YORK LAW TO GOVERN........................ 53
SECTION 11.9 COUNTERPARTS.................................. 53
SECTION 11.10 EFFECT OF HEADINGS. . . . . . . . . . . . . . 53
SECTION 11.11 SECURITIES IN A COMPOSITE CURRENCY,
CURRENCY UNIT, FOREIGN CURRENCY OR IN ECU... 53
SECTION 11.12 JUDGMENT CURRENCY............................ 54
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE...................... 55
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS..... 55
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION... 56
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION...... 57
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS.......... 57
<PAGE>
THIS INDENTURE, dated as of _____________, 1999, by and between
UNITEDGLOBALCOM, INC., a Delaware corporation (the "Issuer"), and FIRSTAR BANK,
N.A., as trustee (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;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; 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 and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 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, as amended (the
"Trust Indenture Act"), or the definitions of which in the Securities Act of
1933, as amended (the "Securities Act"), are referred to in the Trust Indenture
Act, including terms defined therein by reference to the Securities Act (except
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meaning assigned to such terms in the Trust Indenture
Act and in the Securities Act as in effect from time to time. 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 unless a different time
shall be specified with respect to such series of Securities as provided for in
Section 2.3. 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.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section 6.15.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition),
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<PAGE>
published in an official or common language of the country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of 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 on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that is not a day
on which banking institutions 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,
are authorized or required by any applicable law or regulation to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution 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.
"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, as of the date of this Indenture,
located at 101 East Fifth Street, St. Paul, Minnesota 55101.
"Coupon" means any interest coupon appertaining to an Unregistered
Security.
"Covenant Defeasance" shall have the meaning set forth in Section
10.1(C).
"Depositary" means, with respect to the Securities of any series issuable or
issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the European Monetary System of the European Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when used with respect to any Voting Stock means the fair value
as determined in good faith by the Board of Directors of the Issuer.
"Foreign Currency" means a currency issued by the government of a country
other than the United States of America.
"Holder," "Holder of Securities," "Securityholder" or any other similar term
means (a) in the case of any Registered Security, the person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"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.
"IRS" means the Internal Revenue Service of the United States Department of
the Treasury, or any successor entity.
"Issuer" means (except as otherwise provided in Article IX) UNITEDGLOBALCOM,
INC., a Delaware corporation, and, subject to Article IX, its successors and
assigns.
"Issuer Order" means a written statement, request or order of the Issuer
signed in its name by the chairman of the Board of Directors, the president, any
vice president or the treasurer of the Issuer.
"Judgment Currency" has the meaning set forth in Section 11.12.
"Non-U.S. Person" means any person that is not a "U.S. person" as such
term is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman of the
Board of Directors, the president or any vice president or the treasurer of the
Issuer and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for
in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by legal counsel who
may be an employee of the Issuer or other counsel satisfactory to the Trustee.
Each such opinion shall comply with Section 314 of the Trust Indenture Act and
include the statements provided for in Section 11.5.
"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 5.1.
"Outstanding" (except as otherwise provided in Section 7.4), when used with
reference to Securities, means, subject to the provisions of Section 7.4, as of
3
<PAGE>
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.1)
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 given as herein provided,
or provisions satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (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 5.1.
"Periodic Offering" means an offering of Securities of a series from time to
time, the specific terms of which Securities, including, without limitation, the
rate or rates of interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Issuer or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any,"
provided, however, that such inclusion of premium, if any, shall under no
circumstances result in the double counting of such premium for the purpose of
any calculation required hereunder.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a part of a
series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.4, and bearing the legend prescribed in Section 2.4
and any other legend required by the Depositary for such series.
"Registered Security" means any Security registered on the Security
register of the Issuer.
4
<PAGE>
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned to administer corporate trust matters to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security" or "Securities" (except as otherwise provided in Section 7.4) 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.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Securities" means Securities other than Subordinated Securities.
"Subordinated Securities" means Securities that by the terms established
pursuant to Subsection 2.3(9) are subordinate to any specified debt of the
Issuer.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having the voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time of
determination directly or indirectly owned by the Issuer, or by one or more of
its Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article VI, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is then
a trustee hereunder, and, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Voting Stock" means stock of any class or classes having general voting
power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, provided, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"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 II
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series and the Coupons,
if any, to be attached thereto shall be substantially in such form (not
5
<PAGE>
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to but not set forth in a Board Resolution, an Officer's
Certificate detailing such establishment) 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 or endorsements, 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 and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
________________________, as Trustee
By
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with respect
to any series of Securities, then the Trustee's Certificate of Authentication to
be borne by the Securities of each such series shall be substantially as
follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
------------------------
as Authenticating Agent
By
---------------------
Authorized Signatory"
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to but not set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
6
<PAGE>
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series, and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin, currency or currencies in which the
Securities of the series are denominated (including, but not limited to, any
composite currency, currency units, Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable, the terms and conditions of any deferral
of interest and the additional interest, if any, thereon, the right, if any,
of the Issuer to extend the interest payment periods and the duration of the
extensions and (in the case of Registered Securities) the date or dates on
which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(6) the place or places where and the manner in which, the principal of
and any interest on Securities of the series shall be payable, if other than
as provided in Section 3.2;
(7) the right, if any, of the Issuer to redeem Securities, in whole or in
part, at its option and the period or periods within which, or the date or
dates on which, the price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any sinking
fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, 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 or the date or dates on
which and any terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) the terms, if any, on which the Securities of such series will be
subordinate to other debt of the Issuer;
(10) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the
series shall be issuable;
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(11) the percentage of the principal amount at which the Securities will
be issued, and, 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;
(12) if other than the coin, currency or currencies in which the
Securities of the series are denominated, the coin, currency or currencies in
which payment of the principal of or interest on the Securities of such series
shall be payable, including composite currencies or currency units;
(13) if the principal of or interest on the Securities of the series are
to be payable, at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such
election may be made;
(14) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index or
formula based on a coin, currency, composite currency or currency unit other
than that in which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered
Global Securities) or Unregistered Securities (with or without Coupons), or
any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment of interest thereon
and, if other than as provided in Section 2.8, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem the
Securities of the series rather than pay such additional amounts;
(17) if the Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(18) any trustees, depositaries, authenticating or paying agents, transfer
agents or registrars of any other agents with respect to the Securities of
such series;
(19) any deletion from modification of or addition to the Events of
Default or covenants with respect to the Securities of such series;
(20) if the Securities of the series are to be convertible into or
exchangeable for any other security or property of the Issuer, including,
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without limitation, securities of another Person held by the Issuer or its
Affiliates and, if so, the terms thereof; and
(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officer's Certificate referred to above or as set forth in
any indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution,
such Officer's Certificate or in any indenture supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section 2.4, and the Trustee
shall thereupon authenticate and deliver such Securities and Coupons, if any, to
or upon the order of the Issuer (contained in the Issuer Order referred to below
in this Section) or pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, the following enumerated
documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and
deliver Securities of such series for original issue from time to time, in an
aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time by
an Issuer Order, (c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series shall
be determined by an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Issuer or its duly authorized agent or agents, which instructions, if
oral, shall be promptly confirmed in writing;
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(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officer's Certificate setting forth the form or forms and terms of
the Securities and Coupons, if any, stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel,
or a letter addressed to the Trustee permitting it to rely on one or more
Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established pursuant
to a Board Resolution, an Officer's Certificate or a supplemental indenture
in accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have
been established, all such terms will have been duly authorized by the
Issuer and will have been established in conformity with the provisions of
this Indenture; and
(c) such Securities and Coupons, if any, when executed by the
Issuer and authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the purchasers thereof,
and subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture, will be entitled to the benefits
of this Indenture, and will be valid and binding obligations of the Issuer,
enforceable in accordance with their respective terms except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, liquidation, moratorium, fraudulent transfer or similar laws
affecting creditors' rights generally, (ii) rights of acceleration, if any,
and (iii) the availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no opinion
with regard to the enforceability of Section 6.6 or of a judgment
denominated in a currency other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
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opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Issuer and its subsidiaries and certificates of public officials.
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 shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would affect the Trustee's own rights, duties or immunities under the
Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of
a series are to be issued in the form of one or more Registered Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or delivered or held pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities and each Coupon
appertaining thereto, if any, shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president, or any
executive (senior or other), a vice president or its treasurer, under its
corporate seal (except in the case of Coupons) 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 or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
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delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, 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 2.6 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 officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of 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 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST. The
Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series 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 with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each
Unregistered Security shall be dated as provided in the Board Resolution
referred to in Section 2.3. The Securities of each series shall bear interest,
if any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered 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 Registered 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 Registered 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 Registered 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) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the preceding calendar month or, if such interest payment date is the fifteenth
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day of a calendar month, the first day of such calendar month, whether or not
such record date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. (a) The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as the Issuer may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. 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 Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, at the option of the Holder thereof, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Registered Securities of any
series may not be exchanged for Unregistered Securities of such series unless
(1) otherwise specified pursuant to Section 2.3 and (2) the Issuer has delivered
to the Trustee an Opinion of Counsel that (x) the Issuer has received from the
IRS a ruling or (y) since the date hereof, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that the inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no United States federal income tax
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effect adverse to the Issuer or to any Holder. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All Securities and Coupons, if any, surrendered upon any
exchange or transfer provided for in this Indenture shall be promptly cancelled
and disposed of by the Trustee, and the Trustee shall deliver a certificate of
disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed, 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 preceding the first mailing
of notice of redemption of Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in whole or in part,
except, in the case of any Security to be redeemed in part, the portion thereof
not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it
is exchanged in whole or in part for Securities in definitive registered form, a
Registered Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.4 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.3 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
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The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of any Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered Security
or Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
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.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee (any of which, other than the Issuer, shall rely on an Officer's
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result in
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United States federal income tax consequences adverse to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for United States federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States federal income tax
laws.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall be mutilated, defaced, destroyed, lost or stolen, the Issuer in
its discretion may execute and, upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case, the applicant for
a substitute Security or Coupon shall furnish 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,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof, and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, 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) or its agent connected therewith. In case
any Security or Coupon 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 or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), 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 theft, 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 theft of such Security or Coupons and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon 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 or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons 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 stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
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SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All Securities
and Coupons surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if any, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent 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, or as Unregistered Securities
with or without coupons attached thereto, 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 as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references 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 Registered 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 3.2
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 2.3, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. 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, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such series
initially be issued in the form of a single global Unregistered Security to be
delivered to a depositary or agency located outside the United States and the
procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered
Security).
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ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 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, if any,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at the
respective time or times and in the manner provided in such Securities and in
the Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.3. The
interest, if any, on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear
on the Securities register of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any Registered Securities
are authorized for issuance pursuant to this Indenture or are outstanding
hereunder, the Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where the Registered Securities of each series may be
presented for payment, where the Securities of each series may be presented for
exchange as is provided in this Indenture and, if applicable, pursuant to
Section 2.3 and where the Registered Securities of each series may be presented
for registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without tax consequences adverse to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
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The Issuer will maintain in the Borough of Manhattan, The City of New York,
an office or agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location of each
such office or agency and of any change of location thereof. In case the Issuer
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or for any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional offices or
agencies where the Securities of a series and any Coupons appertaining thereto
may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, that no such designation or rescission shall in any manner
relieve the Issuer of its obligations to maintain the agencies provided for in
this Section. The Issuer shall give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.4 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 Coupons appertaining thereto, if any, 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) that it will 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 the foregoing clause (b).
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
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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 or the
Coupons appertaining thereto 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.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, 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
Sections 10.3 and 10.4.
SECTION 3.5 COMPLIANCE CERTIFICATES. The Issuer will furnish to the Trustee
on or before January 31 in each year (beginning with January 31, 2000) a brief
certificate (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his or her duties as an officer of
the Issuer he or she would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or conditions
contained in this Indenture, stating whether or not he or she has knowledge of
any such default or non-compliance and, if so, describing each such default or
non-compliance of which the signer has knowledge and the nature thereof.
SECTION 3.6 CORPORATE EXISTENCE. Subject to Article IX, the Issuer will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory), licenses
and franchises of the Issuer and its Subsidiaries; provided, that the Issuer
shall not be required to preserve any such right, license or franchise, if, in
the judgment of the Issuer, the preservation thereof is no longer desirable in
the conduct of the business of the Issuer and its Subsidiaries taken as a whole
and the loss thereof is not disadvantageous in any material respect to the
Securityholders.
SECTION 3.7 MAINTENANCE OF PROPERTIES. The Issuer will cause all properties
used in or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair, and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
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at all times, except to the extent that the Issuer may be prevented from so
doing by circumstances beyond its control; provided, that nothing in this
Section shall prevent the Issuer from discontinuing the operation or maintenance
of any of such properties, or disposing of any of them, if such discontinuance
or disposal is, in the judgment of the Issuer desirable in the conduct of the
business of the Issuer or any Subsidiary and not disadvantageous in any material
respect to the Securityholders.
SECTION 3.8 PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent: (a) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary; and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; provided, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings; and provided further that
the Issuer shall not be required to cause to be paid or discharged any such tax,
assessment, charge or claim if the Issuer shall determine that such payment is
not advantageous to the conduct of the business of the Issuer and its
Subsidiaries taken as a whole and that the failure so to pay or discharge is not
disadvantageous in any material respect to the Securityholders.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF SECURITYHOLDERS. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer and any other obligor on
the Securities 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 Registered Securities of such series pursuant to Section 312
of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the
payment of interest on such Registered Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.3
for non-interest bearing Registered Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing,
within thirty days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is furnished.
SECTION 4.2 REPORTS BY THE ISSUER. The Issuer covenants to 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 that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to
Section 314 of the Trust Indenture Act.
SECTION 4.3 REPORTS BY THE TRUSTEE.
(a) On or before the first July 15 which occurs not less than 60 days
after the earliest date of issuance of any Securities and on or before July 15
in each year thereafter, so long as any Securities are Outstanding hereunder,
the Trustee shall transmit by mail as provided below to the Securityholders of
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each series of outstanding Securities, as hereinafter in this Section
provided, a brief report dated as of the preceding May 15 with respect to:
(i) its eligibility under Section 6.10 and its qualification under
Section 6.9, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(ii) the character and amount of any advances (and if the Trustee
elects to so state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of such series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 0.5% of the principal of the
Securities of such series outstanding on the date of such report;
(iii) the amount, interest rate and maturity date of all other
indebtedness owing by the Issuer (or any other obligor on the Securities of
such series) to the Trustee in its individual capacity on the date of such
report, with a brief description of any property held as collateral security
therefor, except any indebtedness based upon a creditor relationship;
(iv) the property and funds, if any, physically in the possession
of the Trustee (as such) in respect of the Securities of such series on the
date of such report;
(v) any additional issue of Securities of such series which the
Trustee has not previously reported; and
(vi) any action taken by the Trustee in the performance of its
duties under this Indenture which the Trustee has not previously reported
and which in the Trustee's opinion materially affects the Securities of such
series, except action in respect of a default, notice of which has been or
is to be withheld by it in accordance with the provisions of Section 5.11.
(b) The Trustee shall transmit to the Securityholders of each series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as
such) in respect of the Securities of such series since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
this Indenture) for the reimbursement of which it claims or may claim a lien
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or charge prior to that of the Securities of such series on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this subsection (b), except that the Trustee shall not be required
(but may elect) to report such advances if such advances remaining unpaid at
any time aggregate 10% or less of the principal amount of Securities of such
series outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to all
Holders of Securities of such series, as the names and addresses of such
Holders appear upon the Securities register as of a date not more than 15 days
prior to the mailing thereof.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of such series are listed and
also with the Commission. The Issuer agrees to notify the Trustee when and as
Securities of any series become listed on any national securities exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF
DEFAULT. "Event of Default" with respect to Securities of any series, wherever
used herein, means any 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; provided that, a
valid extension of an interest payment period by the Issuer in accordance with
the terms of such Securities shall not constitute a failure to pay interest;
or
(b) default in the payment of all or any part of the principal or premium
(if any) on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by declaration
or otherwise; or
(c) default in the payment of any sinking fund installment as and when the
same shall become due and payable by the terms of the Securities of such
series; or
(d) failure on the part of the Issuer duly to observe or perform any other
of the covenants or agreements on the part of the Issuer in the Securities of
such series or contained in this Indenture (other than a covenant or agreement
included in this Indenture solely for the benefit of a series of Securities
other than such series) for a period of 90 days after the date on which
written notice specifying such failure, stating that such notice is a "Notice
of Default" hereunder and demanding that the Issuer remedy the same, shall
have been given by registered or certified mail, return receipt requested, to
the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
the series to which such covenant or agreement relates; or
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(e) 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,
sequestrator (or similar official) of the Issuer for any substantial part of
its or their property or ordering the winding up or liquidation of its or
their affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(f) 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 or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Issuer or for any substantial part of its or their property, or make
any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default described in clause (a), (b) or (c) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which 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 each such 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.
Except as otherwise provided in the terms of any series of Senior Securities
pursuant to Section 2.3, if an Event of Default described in clause (d) or (g)
above with respect to all series of the Senior Securities then Outstanding,
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occurs and is continuing, then, and in each and every such case, unless the
Principal of all of the Senior Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all of the Senior Securities then Outstanding hereunder
(treated as one class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the Senior
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) of all of
the Senior Securities then Outstanding, and the interest accrued thereon, if
any, to be due and payable immediately, and upon such declaration, the same
shall become immediately due and payable. If an Event of Default described in
clause (e) or (f) above occurs and is continuing, then the principal amount of
all the Senior Securities then Outstanding, and the interest accrued thereon, if
any, shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
Except as otherwise provided in the terms of any series of Subordinated
Securities pursuant to Section 2.3, if an Event of Default described in clause
(d) or (g) above with respect to all series of Subordinated Securities then
Outstanding, occurs and is continuing, then, and in each and every such case,
unless the Principal of all of the Subordinated Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all of the Subordinated Securities then
Outstanding hereunder (treated as one class) by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Subordinated 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) of all of the Subordinated Securities then
Outstanding, and the interest accrued thereon, if any, to be due and payable
immediately, and upon such declaration, the same shall become immediately due
and payable. If an Event of Default described in clause (e) or (f) above occurs
and is continuing, then the principal amount of all of the Subordinated
Securities then Outstanding, and the interest accrued thereon, if any, shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
If an Event of Default described in clause (d) or (g) occurs and is
continuing, which Event of Default is with respect to less than all series of
Senior Securities then Outstanding, then, and in each and every such case,
except for any series of Senior Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Senior Securities of each such
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 clause (d) or (g) occurs and is
continuing, which Event of Default is with respect to less than all series of
Subordinated Securities then Outstanding, then, and in each and every such case,
except for any series of Subordinated Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
each such 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.
The foregoing provisions 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,
(A) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay
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(i) all matured installments of interest upon all the Securities of
such series (or all the Securities, as the case may be); and
(ii) 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; and
(iii) 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
(iv) all amounts payable to the Trustee pursuant to Section 6.6;
and
(B) 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 Securities of such series voting as a separate class (or all
the Securities, as the case may be, voting as a single class), then Outstanding,
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 5.2 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
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that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal and 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, and such
other amount due the Trustee under Section 6.6 in respect of Securities of such
series.
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 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 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 the Securities
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Securities, wherever situated, all 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, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
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
amounts payable to the Trustee under Section 6.6) and of the Securityholders
allowed in any judicial proceedings relative to the Issuer or other obligor
upon the Securities, or to the creditors or property of the Issuer or such
other obligor; and
(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 receiver,
assignee, trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings, custodian or other
person performing similar functions in respect of any such 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
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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 performing similar functions in respect of any such proceedings 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 its costs and
expenses of collection and all other amounts due to it pursuant to Section
6.6.
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 of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series or Coupons appertaining to such Securities,
may be enforced by the Trustee without the possession of any of the Securities
of such series or Coupons appertaining to such Securities or the production
thereof in 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 shall be awarded to
the Trustee for ratable distribution to the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken, after
payment of all sums due to the Trustee under Section 6.6 in respect of such
Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3 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 and Coupons appertaining to such
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 of
Securities in respect of which monies have been collected, including all
amounts due to the Trustee and each predecessor Trustee pursuant to Section
6.6 in respect to such series of Securities;
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 on such interest,
with interest (to the extent that such interest has been collected by the
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Trustee and is permitted by applicable law) 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 and is permitted by applicable law) upon the overdue
installations 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 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has occurred,
has not been waived and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.5 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 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto 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 such Security, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder or thereunder, unless (a) such Holder
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previously shall have given to the Trustee written notice of an Event of Default
with respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and (b) the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and (c) 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 (d)
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture or any Security to affect, disturb or prejudice the rights of any
other such taker or Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such taker or Holder or to enforce any right under this Indenture or any
Security, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 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 or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon or the applicable
redemption dates provided for 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 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT. Except as provided in Section 5.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities or Coupons is
intended to be exclusive of any other right or remedy and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons 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. Every power and remedy given by this Indenture, any
Security or law to the Trustee or to the Holders of Securities or Coupons may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or, subject to Section 5.6, by the Holders of Securities or Coupons.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
such 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
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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 6.1) the Trustee shall have the right to decline to
follow any such direction if (a) the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken;
or (b) if the Trustee by its board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee shall
determine in good faith that the action or proceedings so directed would involve
the Trustee in personal liability; or (c) if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all affected series not joining in the giving of said direction,
it being understood that (subject to Section 6.1) the Trustee shall have no duty
to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS. Prior to the declaration of
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (voting as a single class) may
on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.1 and its consequences, except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively,
and such default shall cease to exist and be deemed to have been cured and not
to have occurred for purposes of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES. The Trustee shall, within ninety days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless in each case such defaults shall have been cured before
the mailing or publication of such notice (the term "default" for the purpose 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 fund installment on 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.
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SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security or Coupon
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, in the case of
any suit relating to or arising under clause (d) or (g) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (d) or (g) (if
the suit under clause (d) or (g) relates to all the Securities then Outstanding)
or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT. 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, the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series of
Securities. In case an Event of Default with respect to the Securities of a
series has occurred and has not been cured or waived, the Trustee shall exercise
with respect to such series of Securities such of the rights and powers vested
in it by this Indenture with respect to such series of Securities, 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.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to 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:
(i) 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
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(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any 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) 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
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.9 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.
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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 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, 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 Officer's Certificate (unless other
evidence in respect thereof is specifically prescribed herein or in the terms
established in respect of any series); 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 written advice or any
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 reliance thereon 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 therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
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 (i) 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 (treated as one class) or (ii) otherwise
provided in the terms of any series of Securities pursuant to Section 2.3;
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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys 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.
SECTION 6.3 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 or Coupons. 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 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS,
ETC. The Trustee or any agent of the Issuer or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities or Coupons
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 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
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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 6.6 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 reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) and the 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 any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. 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 and the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim 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 or Coupons, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC. Subject
to Sections 6.1 and 6.2, 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
Officer's 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 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE
TRUSTEE. The following indentures are hereby specifically described for the
purposes of Section 310(b)(1) of the Trust Indenture Act: this Indenture with
respect to series of Securities that are of an equal priority.
SECTION 6.9 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for
each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, having a
combined capital and surplus of at least $50,000,000, and which is authorized
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under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, 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. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act.
SECTION 6.11 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 and (i) if any Unregistered Securities of a
series affected are then Outstanding, by giving notice of such resignation to
the Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with
the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they shall appear on the registry
books. 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 5.12,
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 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 6.10 and Section 310(a) of the Trust Indenture Act 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 bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed,
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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 the provisions of
Section 315(e) of the Trust Indenture Act, 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 so 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 for in Section 7.1 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 6.11 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.12.
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 6.11 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 10.4, 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 6.6.
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
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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.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.12 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.12, the Issuer shall give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, (b) if any Unregistered Securities
of a series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act, by mailing such notice to such Holders at such addresses as
were so furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. 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 6.11. If the Issuer fails to give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.13 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
qualified under Section 310(b) of the Trust Indenture Act and eligible under the
provisions of Section 6.10, 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 such successor
to the Trustee may authenticate such Securities either in the name of any
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predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate of authentication shall have the full force which under
this Indenture or the Securities of such series it is provided that the
certificate of authentication 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 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated.
SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing,
appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $45,000,000 (determined as provided in Section
6.10 with respect to the Trustee) and subject to supervision or examination by
federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.15 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
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Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 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 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Registered
Securities shall be proved by the Security register or by a certificate of the
registrar thereof.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. 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. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
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 Unregistered Security or Coupon.
SECTION 7.4 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 request,
demand, authorization, direction, notice, consent, waiver or other action by
Securityholders 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
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such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such action only Securities which
the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as 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 Officer's 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 6.1 and 6.2, the Trustee shall be entitled to accept such
Officer's 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 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, 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 or on registration of transfer thereof, 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 VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), 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 convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
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(b) 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 IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons, 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 permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; 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;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, that no such action shall adversely affect the interests
of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of the
Coupons appertaining to such Securities as permitted by Sections 2.1 and 2.3;
and
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.12.
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 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS.
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(A) Except as set forth in paragraph (C) below, with the consent (evidenced
as provided in Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of all
series of Senior Securities affected by such supplemental indenture (voting as
one class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force and effect at the date of execution thereof) 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 or of the
Coupons appertaining to such Securities.
(B) Except as set forth in paragraph (C) below, with the consent (evidenced
as provided in Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of all
series of Subordinated Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force and effect at the date of execution thereof) 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 or of the
Coupons appertaining to such Securities.
(C) No such supplemental indenture shall (i) extend the final maturity of
any Security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in accordance
with the terms thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of Section 11.11 or
11.12 or impair or affect the right of any Securityholder to institute suit for
the payment thereof when due or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of each Security so affected.
(D) A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
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Upon the request of the Issuer, accompanied by a copy of a resolution of the
Board of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) 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 the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, 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 Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 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 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.5 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
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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 by
Securityholders. 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 IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The Issuer
shall not consolidate with or merge into any other Person or transfer or lease
its properties and assets substantially as an entirety to any Person, and the
Issuer shall not permit any other Person to consolidate with or merge into the
Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or the
successor corporation (if other than the Issuer) formed by such consolidation
or into which the Issuer is merged or to which the properties and assets of
the Issuer substantially as an entirety are transferred or leased shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Issuer under the Securities and this Indenture; and
(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Issuer or a Subsidiary as a
result of such transaction as having been incurred by the Issuer or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED. The successor corporation
formed by such consolidation or into which the Issuer is merged or to which such
transfer or lease is made shall succeed to and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor corporation had been named as the Issuer herein, and
thereafter (except in the case of a lease to another Person) the predecessor
corporation shall be relieved of all obligations and covenants under the
Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance, and
any such assumption, complies with the provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
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SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(A) If at any time (i) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.9) as
and when the same shall have become due and payable, or (ii) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (b) below, (a) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (b) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust the entire amount in (i)
cash (other than moneys repaid by the Trustee or any paying agent to the Issuer
in accordance with Section 10.4), (ii) in the case of any series of Securities
the payments on which may only be made in Dollars, direct obligations of the
United States of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash sufficient to pay at such
maturity or upon such redemption, as the case may be, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (x) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (y) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series; and if, in
any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and exchange
of Securities of such Series and of Coupons appertaining thereto pursuant to
Section 2.8 and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of holders of Securities and Coupons appertaining thereto
pursuant to Section 2.8 to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) any optional redemption rights of such series of
Securities to the extent to be exercised to make such call for redemption within
one year, (v) the rights, obligations, duties and immunities of the Trustee
hereunder, including those under Section 6.6, (vi) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, and (vii) the obligations of the Issuer under Section 3.2) and
the Trustee, on demand of the Issuer accompanied by an Officer's Certificate and
an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture; provided, that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the Securities and
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Coupons held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
(B) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (a) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and
Coupons appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto pursuant to Section 2.8 and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) any optional redemption rights of such
series of Securities to the extent to be exercised to make such call for
redemption within one year, (v) the rights, obligations, duties and immunities
of the Trustee hereunder, (vi) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and
(vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the
expense of the Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably deposited
or caused to be irrevocably deposited with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any series
of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (b) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is
a party or by which it is bound;
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(c) the Issuer has delivered to the Trustee an opinion of counsel from a
nationally recognized law firm based on the fact that (x) the Issuer has
received from, or there has been published by, the IRS a ruling or (y) since
the date hereof, there has been a change in the applicable United States
federal income tax law, in either case to the effect that, and such opinion
shall confirm that, the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amount and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will not
be subject to avoidance as a preferential transfer under Section 547(b) of the
United States Bankruptcy Code (except with respect to any Holder that is an
"insider" of the Issuer within the meaning of the United States Bankruptcy
Code); and
(e) the Issuer has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this provision have been complied
with.
(C) The Issuer shall be released from its obligations under Sections 3.6,
3.7 and 9.1 and unless otherwise provided for in the Board Resolution, Officer's
Certificate or Indenture supplemental hereto establishing such series of
Securities, from all covenants and other obligations referred to in Section
2.3(19) or 2.3(21) with respect to such series of Securities, and any Coupons
appertaining thereto, outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
any series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not constitute
an Event of Default under Section 5.1, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Securities of such series and coupons
appertaining thereto, (i) cash in an amount, or (ii) in the case of any series
of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
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independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereof and (B) any
mandatory sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of
such series;
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 6.9 and for purposes of the Trust
Indenture Act with respect to any securities of the Issuer;
(d) Such covenant defeasance shall not result in a breach or violation of,
or constitute a default under any agreement or instrument to which the Issuer
is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any Securities then listed on
any registered national securities exchange under the Exchange Act to be
delisted;
(f) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an opinion of counsel from a nationally recognized law firm to
the effect that the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for United States
federal income tax purposes as a result of such covenant defeasance and will
be subject to United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred;
(g) The Issuer has delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will not
be subject to avoidance as a preferential transfer under Section 547(b) of the
United States Bankruptcy Code (except with respect to any Holder that is an
"insider" of the Issuer within the meaning of the United States Bankruptcy
Code); and
(h) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by
this provision have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 10.4, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.1 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
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the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series
and of any Coupons attached thereto and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, that the Trustee or such
paying agent, before being required to make any such repayment with respect to
moneys deposited with it for any payment (a) in respect of Registered Securities
of any series, shall at the expense of the Issuer, mail by first-class mail to
Holders of such Securities at their addresses as they shall appear on the
Security register, and (b) in respect of Unregistered Securities of any series,
shall at the expense of the Issuer cause to the published once, in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, notice, that such
moneys remain and that, after a date specified therein, which shall not be less
than thirty days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS. 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 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, SHAREHOLDERS, 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 shareholder,
officer or director, 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 and the Coupons, if any,
appertaining thereto by the Holders thereof and as part of the consideration for
the issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND
HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities
or in the Coupons appertaining thereto, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
thereto and their successors and the Holders of the Securities or Coupons, if
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any, 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 or Coupons, if any.
SECTION 11.3 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 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. 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 or Coupons, if any, to or on the Issuer may be given
or served by being deposited postage prepaid, first-class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to UNITEDGLOBALCOM, INC., 4643 SOUTH ULSTER STREET, SUITE
1300, DENVER, COLORADO 80237, Telecopier No.: (303) 770-4207, Attention:
Secretary. Any notice, direction, request or demand by the Issuer or any Holder
of Securities or Coupons, if any, to or upon the Trustee shall be deemed to have
been sufficiently given or served by being deposited postage prepaid,
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to FIRSTAR BANK, N.A., 101 EAST
FIFTH STREET, ST. PAUL, MINNESOTA 55101, Telecopier No.: (651) 229-6415,
Attention:
Corporate Trust Department.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class mail (certified or
registered, return receipt requested) or by overnight air courier guaranteeing
next day delivery to each Holder entitled thereto, at his last address as it
appears in the Security register.
Where this Indenture provides for notice to holders of Unregistered
Securities, such notice shall be sufficiently given (unless otherwise expressly
provided herein) by giving notice to such Holders (a) by publication of such
notice at least once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and (ii) by mailing such notice to the Holders of Unregistered
Securities who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee.
In any case where notice to such 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,
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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 when such notice
is required to the given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 OFFICER'S 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 Officer's 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
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certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or 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 of 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 and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date of
maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon 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 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision shall control.
SECTION 11.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH SECURITY AND
COUPON 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 INCLUDING, WITHOUT LIMITATION, SECTION 5-140 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
SECTION 11.9 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 11.10 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.
SECTION 11.11 SECURITIES IN A COMPOSITE CURRENCY, CURRENCY UNIT, FOREIGN
CURRENCY OR IN ECU. Unless otherwise specified in an Officer's Certificate
delivered pursuant to Section 2.3 of this Indenture with respect to a particular
series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin, currency or currencies other than
Dollars (including, but not limited to, any composite currency, currency units,
Foreign Currency or ECUs), then the principal amount of Securities of such
series which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate. For purposes of this Section 11.11, Market Exchange
Rate shall mean the noon Dollar buying rate in The City of New York for cable
transfers of such currency or currencies as published by the Federal Reserve
Bank of New York as of the most recent available date; provided that, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal") as of the most recent available
date. If such Market Exchange Rate is not so available for any reason with
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respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
54
<PAGE>
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 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 2.3 for Securities of
such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of redemption
to the Holders of Registered 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. Notice of redemption to the Holders of Unregistered Securities
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act shall
be given by mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice of
redemption to all other Holders of Unregistered Securities shall be published in
an Authorized Newspaper in the Borough of Manhattan, The City of New York, once
in each of three successive calendar weeks, the first publication to be not less
than 30 nor more than 60 days prior to the date fixed for redemption. 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 such Security of such series.
The notice of redemption to each such Registered Holder shall specify the
principal amount of each Security of such series held by such Registered 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 and, in the case of Securities with Coupons attached thereto,
of all Coupons appertaining thereto maturing after the date fixed for
redemption, 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 to Registered Holders of Securities of the series
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 request,
by the Trustee in the name and at the expense of the Issuer.
55
<PAGE>
On or before 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 3.4) 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. The Issuer will deliver
to the Trustee at least 70 days prior to the date fixed for redemption, or such
shorter period as shall be acceptable to the Trustee, an Officer's Certificate
stating the aggregate principal amount of Securities to be redeemed. In case of
a redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer's Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deemed appropriate and fair, in its
sole discretion, Securities of such series to be redeemed in whole or in part.
Securities 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 12.3 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 the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and 10.4, 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,
together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, 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
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holder of such Registered Securities registered
as such on the relevant record date, subject to the terms and provisions of
Section 2.3 and 2.7 hereof.
56
<PAGE>
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
such Security.
If any Security with Coupons attached thereto is surrendered for redemption
and is not accompanied by all appurtenant Coupons maturing after the date fixed
for redemption, the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
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 12.4 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 an
Officer's Certificate 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 as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any
sinking fund payment provided for by the terms of the 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 the 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 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officer's Certificate
(which need not contain the statements required by Section 11.5) (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 and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
57
<PAGE>
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 Officer's Certificate (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 60th day, to deliver
such Officer's Certificate 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 the equivalent thereof in any composite currency, currency units, Foreign
Currency or ECU) or a lesser sum in Dollars (or the equivalent thereof in any
composite currency, currency units, Foreign Currency or ECU) if the Issuer shall
so request 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 the equivalent thereof in any composite currency, currency
units, Foreign Currency or ECU) or less and the Issuer makes no such request
then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any composite currency, currency units, Foreign Currency
or ECU) is available. The Trustee shall select, in the manner provided in
Section 12.2, 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 shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date 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 Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) 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
58
<PAGE>
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.
On or 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 give 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
except that, where the giving 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, 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 Five and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Section 5.10 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.
59
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed and attested as of the date first written above.
UNITEDGLOBALCOM, INC.
By:
Name:
Title:
Attest:
By:
FIRSTAR BANK, N.A.
As Trustee
By:
Name:
Title:
Attest:
By:
60
[letterhead of Holme Roberts & Owen LLP]
November 18, 1999
UnitedGlobalCom, Inc.
4643 South Ulster Street, Suite 1300
Denver, Colorado 80237
Re: UnitedGlobalCom, Inc. Form S-3 Registration Statement
Ladies and Gentlemen:
As counsel for UnitedGlobalCom, Inc., a Delaware corporation ("UGC"),
we are familiar with UGC's Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933 (the "Act"), on November 16, 1999, with respect to
the offering and issuance from time to time by UGC of up to $1,200,000,000
aggregate offering price of the following: (i) one or more series of its debt
securities (the "Debt Securities"), (ii) shares of its Preferred Stock (the
"Preferred Stock") or (iii) shares of its Common Stock (the "Common Stock").
All capitalized terms which are not defined herein shall have the
meanings assigned to them in the Registration Statement.
In connection with our examination of documents as hereinafter
described, we have assumed the genuineness of all signatures on, and the
authenticity of, all documents submitted to us as originals and the conformity
to original documents of all documents submitted to us as copies. With respect
to agreements and instruments executed by natural persons, we have assumed the
legal competency of such persons.
For the purpose of rendering this opinion, we have made such factual
and legal examination as we deemed necessary under the circumstances, and in
that connection we have examined, among other things, originals or copies of the
following:
(1) The Certificate of Incorporation of UGC, as amended to date;
(2) The Bylaws of UGC, as amended to date;
(3) The Form of Indenture filed as an exhibit to the Registration
Statement;
<PAGE>
UnitedGlobalCom, Inc.
November 18, 1999
Page 2
(4) Such records of the corporate proceedings of UGC, and
such other documents that we considered necessary or
appropriate for the purpose of rendering this
opinion; and
(5) Such other certificates and assurances from public
officials, officers and representatives of UGC that
we considered necessary or appropriate for the
purpose of rendering this opinion.
On the basis of the foregoing examination, and in reliance thereon, we
are of the opinion that (subject to compliance with the pertinent provisions of
the Act and, with respect to the Indentures (as defined below) and the Debt
Securities, the Trust Indenture Act of 1939, as amended, and to compliance with
such securities or "blue sky" laws of any jurisdiction as may be applicable):
1. When (a) the Debt Securities in substantially the form contained in
the Form of Indenture (as amended or supplemented in accordance with the
respective terms thereof, an "Indenture") shall have been authorized, executed
and authenticated in accordance with the terms of an Indenture, (b) the
Indenture shall have been qualified under the Trust Indenture Act of 1939, duly
executed and delivered and (c) the Debt Securities shall have been issued and
sold as described in the Registration Statement, and if in an underwritten
offering, in accordance with the terms and conditions of the applicable
underwriting agreement, and in a manner contemplated in the Registration
Statement, including the Prospectus Supplement relating to any such Debt
Securities, the Debt Securities will be duly authorized and valid and binding
obligations of UGC, subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium, arrangement, or similar laws affecting the
enforcement of creditors' rights generally (including, without limitation, the
effect of statutory or other laws regarding fraudulent transfers or preferential
transfers) and general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law.
2. When the Preferred Stock shall have been authorized, issued and sold
as described in the Registration Statement, and if in an underwritten offering,
in accordance with the terms and conditions of the applicable underwriting
agreement, and in a manner contemplated in the Registration Statement, including
the Prospectus Supplement relating to the applicable series of such Preferred
Stock, the Preferred Stock will be validly issued, fully paid and nonassessable.
<PAGE>
UnitedGlobalCom, Inc.
November 18, 1999
Page 3
3. When the Common Stock shall have been authorized, issued and sold as
described in the Registration Statement, and if in an underwritten offering, in
accordance with the terms and conditions of the applicable underwriting
agreement, and in a manner contemplated in the Registration Statement, including
the Prospectus Supplement relating to the applicable offering of such Common
Stock, the Common Stock will be validly issued, fully paid and nonassessable.
This opinion is limited to the present corporate laws of the State of
Delaware, the present laws of the States of Colorado and New York and the
present federal laws of the United States and to the present judicial
interpretations thereof and to the facts as they presently exist. We undertake
no obligation to advise you as a result of developments occurring after the date
hereof or as a result of facts or circumstances brought to our attention after
the date hereof.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the prospectus contained in the Registration Statement. In giving
this consent, we do not admit we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the SEC promulgated thereunder.
Very truly yours,
HOLME ROBERTS & OWEN LLP
By: /s/ Nick Nimmo
Nick Nimmo, Partner
<TABLE>
<CAPTION>
Ratio of Combined Fixed Charges and Preferred Stock Dividends (000's)
For the Year For the Year For the Year For the Year For the Ten For the Nine
Ended Ended Ended Ended Months Ended Months Ended
February 28, February 29, February 28, February 28, December 31, September 30,
1995 1996 1997 1998 1998 1999
------------ ----------- --------------- ----------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) from continuing
operations before other items....... (25,583) (43,757) (95,608) (196,364) (492,776) 603,856
Fixed charges and preferred stock
dividends:
Interest, whether expensed or
capitalized......................... 9,328 36,045 79,659 124,288 163,227 234,712
Preferred stock dividend requirements. - 232 1,221 1,271 1,623 9,126
------------- ------------ --------- ----------- ------------- ---------
Total fixed charges and preferred
stock dividends..................... 9,328 36,277 80,880 125,559 164,850 243,838
Adjusted earnings (losses)............ (16,255) (7,480) (14,728) (70,805) (327,926) 847,694
Fixed charges and preferred
stock dividends..................... 9,328 36,277 80,880 125,559 164,850 243,838
------------- ------------ --------- ----------- ------------- ---------
Ratio of earnings to fixed charges
and preferred stock dividends....... - - - - - 3.48
Dollar amount of coverage deficiency.. (25,583) (43,757) (95,608) (196,364) (492,776) -
------------- ------------ --------- ----------- ------------- ---------
</TABLE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gene W. Schneider, Michael T. Fries and
and Frederick G. Westerman III, and each of them, his or her attorneys-in-fact,
with full power of substitution, for him or her in any and all capacities, to
sign a registration statement to be filed with the Securities and Exchange
Commission (the "Commission") on Form S-3 in connection with the registration by
UnitedGlobalCom, Inc., a Delaware corporation (the "Company"), of one or more
types of equity or debt securities, and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission; and to sign all
documents in connection with the qualification and issuance of such shares with
Blue Sky authorities; granting unto said attorneys-in-fact full power and
authority to perform any other act on behalf of the undersigned required to be
done in the premises, hereby ratifying and confirming all that said
attorneys-in-fact may lawfully do or cause to be done by virtue hereof.
Date: November 15, 1999 /s/ Gene W. Schneider
-----------------------------
Gene W. Schneider
Date: November 15, 1999 /s/ Albert M. Carollo
-----------------------------
Albert M. Carollo
Date: November 15, 1999 /s/ John P. Cole, Jr.
-----------------------------
John P. Cole, Jr.
Date: November 15, 1999 /s/ Lawrence J. DeGeorge
-----------------------------
Lawrence J. DeGeorge
Date: November 15, 1999 /s/ Michael T. Fries
-----------------------------
Michael T. Fries
Date: November 15, 1999 /s/ Gregory B. Maffei
-----------------------------
Gregory B. Maffei
Date: November 15, 1999 /s/ John C. Malone
-----------------------------
John C. Malone
Date: November 15, 1999 /s/ John F. Riordan
-----------------------------
John F. Riordan
Date: November 15, 1999 /s/ Curtis W. Rochelle
-----------------------------
Curtis W. Rochelle
Date: November 15, 1999 /s/ Mark L. Schneider
-----------------------------
Mark L. Schneider
Date: November 15, 1999 /s/ Tina M. Wildes
-----------------------------
Tina M. Wildes
Date: November 15, 1999 /s/ Frederick G. Westerman III
-----------------------------
Frederick G. Westerman III
Date: November 15, 1999 /s/ Valerie L. Cover
-----------------------------
Valerie L. Cover
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
------------------------------------
FIRSTAR BANK, N.A.
f/k/a FIRSTAR BANK OF MINNESOTA, N.A.
(Exact name of Trustee as specified in its charter)
A National Banking Association 41-0122055
(State of incorporation if not a national bank) (IRS Employer
Identification No.)
101 East Fifth Street
Corporate Trust Department
St. Paul, Minnesota 55101
(Address of principal executive offices) (Zip Code)
FIRSTAR BANK, N.A.
101 East Fifth Street
St. Paul, Minnesota 55101
(651) 229-2600
(Exact name, address and telephone number of agent for service)
-----------------------------------
UnitedGlobalCom, Inc.
(Exact name of obligors as specified in their charters)
Delaware 84-1116217
(State of incorporation or other (IRS Employer
jurisdiction) (Identification No.)
<PAGE>
4643 South Ulster Street
Suite 1300
Denver, Colorado 80237
(Address of obligors' principal executive offices) (Zip Code)
-------------------------------------
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or
supervising authority to which it is
subject.
Comptroller of the Currency
Treasury Department
Washington, DC
Federal Deposit Insurance Corporation
Washington, DC
The Board of Governors of the Federal Reserve System
Washington, DC
(b) The Trustee is authorized to exercise corporate trust
powers.
GENERAL
Item 2. Affiliations with Obligor and
Underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None.
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge the
obligor is not in default under any Indenture for which the Trustee acts as
Trustee.
<PAGE>
<TABLE>
<CAPTION>
Item 16. List of Exhibits. Listed below are all the
exhibits filed as a part of this statement of
eligibility and qualification. Exhibits 1-4 are incorporated by reference from filing
333-48849. Exhibit 7 is incorporated by reference from filing 333-79659.
<S> <C>
Exhibit 1. Copy of Articles of Association of the trustee now in effect.
Exhibit 2. a. A copy of the
certificate of the Comptroller of Currency dated
June 1, 1965, authorizing Firstar Bank of Minnesota, N. A. to
act as fiduciary.
b. A copy of the
certificate of authority of the
trustee to commence business issued
June 9, 1903, by the Comptroller of
the Currency to Firstar Bank of
Minnesota, N.A.
Exhibit 3. A copy of the authorization o
the trustee to exercise corporate trust
powers issued by the Federal Reserve Board.
Exhibit 4. Copy of the By-Laws of the trustee as now in effect.
Exhibit 5. N/A.
Exhibit 6. The consent of the trustee required by Section 321(b) of the Act.
Exhibit 7. A copy of the latest report of
condition of the trustee published
pursuant to law or the requirements
of its supervising or examining
authority.
</TABLE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligor within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligor, or affiliates, are based
upon information furnished to the Trustee by the obligor. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, a national banking association organized and existing under the laws of
the United States, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested, all in the City of
Saint Paul and State of Minnesota on the 15th day of November, 1999.
FIRSTAR BANK, N.A.,
f/k/a FIRSTAR BANK OF MINNESOTA, N.A.
(Seal)
/s/ Frank P. Leslie III
Frank P. Leslie III, Vice President
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, Firstar Bank of Minnesota, N.A., hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: November 15, 1999
FIRSTAR BANK, N.A.,
f/k/a/ FIRSTAR BANK OF MINNESOTA, N.A.
/s/ Frank P. Leslie III
Frank P. Leslie III, Vice President
