As filed with the Securities and Exchange Commission on September 18, 2013
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Comcast
Corporation
NBCUniversal Media, LLC
Comcast Cable Communications, LLC
Comcast Cable Holdings, LLC
Comcast MO Group, Inc.
Comcast MO of Delaware, LLC
(Exact Name of Registrants as Specified in
Their Charters)
|
|
|
|
|
|
|
Pennsylvania
|
|
27-0000798
|
|
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
|
|
Delaware
|
|
14-1682529
|
|
30 Rockefeller Plaza
New York, New York 10112-0015
(212) 664-4444
|
|
Delaware
|
|
23-2175755
|
|
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
|
|
Delaware
|
|
84-1260157
|
|
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
|
|
Delaware
|
|
91-2047743
|
|
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
|
|
Delaware
|
|
84-1372033
|
|
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
|
|
(State or Other Jurisdiction of Incorporation or Organization)
|
|
(I.R.S. Employer Identification Number)
|
|
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
|
Arthur R. Block, Esq.
Senior Vice President,
General Counsel and Secretary
Comcast Corporation
One Comcast Center
Philadelphia, Pennsylvania 19103-2838
(215)
286-1700
(Name, Address,
Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Bruce K. Dallas, Esq.
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, California 94025
(650)
752-2000
Approximate
date of commencement of proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box.
¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box.
x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2
of the Exchange Act. (Check one):
|
|
|
|
|
|
|
|
|
Large accelerated filer
|
|
x
|
|
Accelerated filer
|
|
¨
|
|
Non-accelerated filer
|
|
¨
(Do not check if a smaller reporting company)
|
|
Smaller reporting company
|
|
¨
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
Title of Each Class of
Securities to be Registered
|
|
Proposed Maximum Aggregate
Offering Price(1)
|
|
Amount of
Registration Fee(1)
|
|
Senior debt securities (“Senior Debt Securities”)
|
|
|
|
|
|
Preferred stock, without par value
|
|
|
|
|
|
Depositary shares representing preferred stock
|
|
|
|
|
|
Class A common stock, $0.01 par value
|
|
|
|
|
|
Class A Special common stock, $0.01 par value
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
Purchase Contracts
|
|
|
|
|
|
Units
|
|
|
|
|
|
Guarantees of Debt Securities, Warrants, Purchase Contracts and Units
|
|
|
|
|
|
|
|
|
|
(1)
|
An indeterminate amount of securities to be offered at indeterminate prices is being registered pursuant to this registration statement. The Registrants are deferring
payment of the registration fee pursuant to Rule 456(b) and are omitting this information in reliance on Rule 456(b) and Rule 457(r). These securities may also be sold separately, together or as units with other securities registered hereunder.
|
PROSPECTUS
The following are types of securities that may be offered and sold from time to time by Comcast Corporation or by selling security
holders under this prospectus:
|
|
|
|
|
• Unsecured senior debt securities
|
|
• Preferred stock
|
|
• Warrants
|
|
• Depositary shares
|
|
• Purchase contracts
|
|
• Class A common stock
|
|
• Units
|
|
• Class A Special common stock
|
If indicated in the relevant prospectus supplement, the securities may be fully and unconditionally
guaranteed by a number of our wholly owned subsidiaries named in this prospectus.
Our Class A common stock and
Class A Special common stock are quoted on the Nasdaq Global Select Market under the ticker symbols “CMCSA” and “CMCSK”. On September 17, 2013, the reported last sale prices on the Nasdaq Global Select Market for our
Class A common stock and our Class A Special common stock were $44.45 and $43.10, respectively.
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
|
|
• Dividends
|
|
• Conversion or exchange rights
|
|
• Interest rate
|
|
• Redemption terms
|
|
• Liquidation amount
|
|
• Sinking fund terms
|
|
• Listing on a securities exchange
|
|
• Subsidiary guarantees
|
|
• Currency of payments
|
|
• Amount payable at maturity
|
|
|
Investing in these securities involves certain risks. See “Item 1A—Risk Factors” beginning on page 29 of
Comcast’s annual report on Form
10-K
for the year ended December 31, 2012, and beginning on page 14 of NBCUniversal’s annual report on Form 10-K for the year ended December 31, 2012, which are
incorporated by reference herein.
The Securities and Exchange Commission and state securities regulators have not approved or disapproved of these securities, or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We may offer
the securities in amounts, at prices and on terms determined at the time of offering. We 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.
The date of this
prospectus is September 18, 2013
TABLE OF CONTENTS
You should rely only on the information contained in or incorporated by reference in this prospectus. We
have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information contained in or incorporated by reference
in this prospectus is accurate as of any date other than the date on the front of this prospectus.
We refer to Comcast
Corporation in this prospectus as “Comcast;” Comcast and its consolidated subsidiaries, including NBCUniversal, as “we,” “us,” “our” or comparable terms and to Comcast Holdings Corporation as “Comcast
Holdings.” We refer to NBCUniversal Media, LLC as “NBCUniversal,” Comcast Cable Communications, LLC as “Comcast Cable,” Comcast MO Group, Inc. as “Comcast MO Group,” Comcast Cable Holdings, LLC as “Comcast
Cable Holdings,” Comcast MO of Delaware, LLC as “Comcast MO of Delaware,” and all of them collectively as the “Guarantors.”
i
THE COMPANIES
Comcast Corporation
We
are a global media and technology company with two primary businesses, Comcast Cable and NBCUniversal. We present our operations in the following five reportable business segments:
|
|
•
|
|
Cable Communications
: Consists of the operations of Comcast Cable, which is the nation’s largest provider of video, high-speed Internet and
voice services to residential customers under the XFINITY brand, and Comcast Cable also provides these services to businesses.
|
|
|
•
|
|
Cable Networks
: Consists primarily of NBCUniversal’s national cable networks, its regional sports and news networks, its international
cable networks, its cable television production operations, and its related digital media properties.
|
|
|
•
|
|
Broadcast Television
: Consists primarily of NBCUniversal’s broadcast networks, NBC and Telemundo, its NBC and Telemundo owned local
broadcast television stations, its broadcast television production operations, and its related digital media properties.
|
|
|
•
|
|
Filmed Entertainment
: Consists primarily of the operations of Universal Pictures, which produces, acquires, markets and distributes filmed
entertainment worldwide.
|
|
|
•
|
|
Theme Parks
: Consists primarily of NBCUniversal’s Universal theme parks in Orlando and Hollywood.
|
In 2012, the Cable Communications segment generated 63% of Comcast’s consolidated revenue and more than 80% of Comcast’s
operating income before depreciation and amortization. The Cable Networks, Broadcast Television, Filmed Entertainment and Theme Parks segments comprise NBCUniversal’s businesses.
Our other business interests primarily include Comcast-Spectacor, which owns the Philadelphia Flyers and the Wells Fargo Center arena in
Philadelphia and operates arena management-related businesses.
For a description of the business, financial condition,
results of operations and other important information regarding us, see our filings with the Securities and Exchange Commission (the “SEC” or the “Commission”) incorporated by reference in this prospectus. For instructions on how
to find copies of these and other filings incorporated by reference in this prospectus, see “Available Information” in this prospectus.
The Guarantors
Our obligations, including the payment of principal,
premium, if any, and interest on the debt securities issued pursuant to this prospectus will be fully and unconditionally guaranteed by each of the Guarantors. In this prospectus, we refer to these guarantees as the “Guarantees.” We have
numerous other subsidiaries, including Comcast Holdings, and its and the Guarantors’ respective subsidiaries, that will not be guarantors on the debt securities. If indicated in the relevant prospectus supplement, our obligations under the
other securities we are offering and selling may be fully and unconditionally guaranteed by specified Guarantors.
The
Guarantees will not contain any restrictions on the ability of any Guarantor to:
|
|
•
|
|
pay dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of that Guarantor’s capital
stock; or
|
|
|
•
|
|
make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of that Guarantor.
|
1
NBCUniversal Media, LLC
NBCUniversal is one of the world’s leading media and entertainment companies. It develops, produces and distributes entertainment,
news and information, sports and other content for global audiences and owns and operates a diversified and integrated portfolio of some of the most recognizable media brands in the world.
Comcast Cable Communications, LLC
Comcast Cable, which was incorporated in 1981 as a Delaware corporation, became a Delaware limited liability company in 2003 and is an indirect wholly owned subsidiary of ours.
Comcast Cable Holdings, LLC
Comcast Cable Holdings is a Delaware limited liability company (formerly known as AT&T Broadband, LLC) formed in 1994. Comcast Cable Holdings is a wholly owned subsidiary of Comcast Cable.
Comcast MO Group, Inc.
Comcast MO Group is a Delaware corporation (formerly known as MediaOne Group, Inc.) incorporated in 1999. Comcast MO Group is a wholly owned subsidiary of Comcast Cable.
Comcast MO of Delaware, LLC
Comcast MO of Delaware, which was incorporated in 1996 as a Delaware corporation, became a Delaware limited liability company in 2003. Comcast MO of Delaware is an indirect wholly owned subsidiary of
Comcast MO Group.
The principal executive offices of Comcast and the Guarantors other than NBCUniversal are located at One Comcast Center, Philadelphia,
Pennsylvania 19103-2838, and our telephone number is
(215) 286-1700.
The
principal executive offices of NBCUniversal are located at 30 Rockefeller Plaza, New York, New York 10112-0015, and its telephone number is (212) 664-4444.
We maintain a website at http://www.comcastcorporation.com where general information about us is available. We are not incorporating the contents of the website into this prospectus.
2
CAUTION CONCERNING FORWARD-LOOKING STATEMENTS
In this prospectus and in the documents we incorporate by reference, we state our beliefs of future events and of our future financial
performance. In some cases, you can identify these
so-called
“forward-looking statements” by words such as “may,” “will,” “should,” “expects,”
“believes,” “estimates,” “potential,” or “continue,” or the negative of these words, and other comparable words. You should be aware that those statements are only our predictions. In evaluating those
statements, you should specifically consider various factors, including the risks and uncertainties listed in “Item 1A—Risk Factors” in our and NBCUniversal’s Annual Reports on Form
10-K
for the year ended December 31, 2012 incorporated herein by reference. Actual events or our actual results may differ materially from any of our forward-looking statements. We undertake no obligation
to update any
forward-looking
statements.
Our businesses may be affected by, among
other things, the following:
|
|
•
|
|
our businesses currently face a wide range of competition, and our businesses and results of operations could be adversely affected if we do not
compete effectively;
|
|
|
•
|
|
changes in consumer behavior driven by new technologies may adversely affect our businesses;
|
|
|
•
|
|
programming expenses for our video services are increasing, which could adversely affect our businesses;
|
|
|
•
|
|
we are subject to regulation by federal, state, local and foreign authorities, which may impose additional costs and restrictions on our businesses;
|
|
|
•
|
|
weak economic conditions may have a negative impact on our businesses;
|
|
|
•
|
|
a decline in advertising expenditures or changes in advertising markets could negatively impact our businesses;
|
|
|
•
|
|
NBCUniversal’s success depends on consumer acceptance of its content, which is difficult to predict, and its businesses may be adversely affected
if its content fails to achieve sufficient consumer acceptance or our costs to acquire content increase;
|
|
|
•
|
|
the loss of NBCUniversal’s programming distribution agreements, or the renewal of these agreements on less favorable terms, could adversely affect
its businesses;
|
|
|
•
|
|
our businesses depend on keeping pace with technological developments;
|
|
|
•
|
|
we rely on network and information systems and other technologies, as well as key properties, and a disruption, cyber attack, failure or destruction of
such networks, systems, technologies or properties may disrupt our businesses;
|
|
|
•
|
|
our businesses depend on using and protecting certain intellectual property rights and on not infringing the intellectual property rights of others;
|
|
|
•
|
|
we may be unable to obtain necessary hardware, software and operational support;
|
|
|
•
|
|
labor disputes, whether involving employees or sports organizations, may disrupt our operations and adversely affect our businesses;
|
|
|
•
|
|
the loss of key management personnel or popular on-air and creative talent could have an adverse effect on our businesses;
|
|
|
•
|
|
sales of DVDs have been declining;
|
|
|
•
|
|
we face risks arising from the outcome of various litigation matters;
|
|
|
•
|
|
we face risks relating to doing business internationally that could adversely affect our businesses;
|
3
|
|
•
|
|
acquisitions and other strategic transactions present many risks, and we may not realize the financial and strategic goals that were contemplated at
the time of any transaction; and
|
|
|
•
|
|
our Class B common stock has substantial voting rights and separate approval rights over several potentially material transactions, and our Chairman
and CEO has considerable influence over our company through his beneficial ownership of our Class B common stock.
|
4
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for working capital and general corporate purposes. We may also invest
the proceeds in certificates of deposit, U.S. government securities or certain other interest-bearing securities. If we decide to use the net proceeds from a particular offering of securities for a specific purpose, we will describe that in the
related prospectus supplement.
DIVIDEND POLICY
We intend to pay quarterly dividends at an annual rate currently of $0.78 per share. Our Board of Directors retains the right to change
our dividend policy at any time.
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS TO COMBINED
FIXED
CHARGES AND PREFERRED DIVIDENDS
Our ratio of earnings to fixed charges and our ratio of earnings to combined fixed charges and preferred dividends were as follows for the respective periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months
Ended June 30, 2013
|
|
For the Years Ended
December 31,
|
|
|
2012
|
|
2011
|
|
2010
|
|
2009
|
|
2008
|
|
Ratio of earnings to fixed charges and ratio of earnings to combined fixed charges and preferred dividends:
|
|
4.68x
|
|
4.82x
|
|
4.04x
|
|
3.57x
|
|
3.01x
|
|
2.49x
|
We have no issued or outstanding Comcast preferred stock and, as a result, the ratio of earnings to fixed
charges is the same as the ratio of earnings to combined fixed charges and preferred dividends. For purposes of calculating the ratios, earnings is the amount resulting from (1) adding (a) pretax income from continuing operations before
adjustment for noncontrolling interests in consolidated subsidiaries or income or loss from equity investees, (b) fixed charges, (c) amortization of capitalized interest, (d) distributed income of equity investees and (e) our
share of pretax losses of equity investees for which charges arising from guarantees are included in fixed charges and (2) subtracting (i) interest capitalized, (ii) preference security dividend requirements of consolidated
subsidiaries and (iii) the noncontrolling interest in pretax income of subsidiaries that have not incurred fixed charges. Fixed charges is the sum of (w) interest expensed and capitalized, (x) amortized premiums, discounts and
capitalized expenses related to indebtedness, (y) an estimate of the interest within rental expense and (z) preference security dividend requirements of our consolidated subsidiaries. Preference security dividend requirements are the
amount of pretax earnings required to pay the dividends on outstanding preference securities. Interest associated with our uncertain tax positions is a component of income tax expense.
5
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Our debt securities, consisting of notes, debentures or other evidences of indebtedness, may be issued from time to time in one or more
series under a senior indenture dated September 18, 2013, entered into among us, the Guarantors and The Bank of New York Mellon, as trustee.
The senior indenture is included as an exhibit to the registration statement of which this prospectus is a part.
Because the following is only a summary of the indenture and the debt securities, it does not contain all information that you may find useful. For further information about the indenture and the debt
securities, you should read the indenture. As used in this section of the prospectus and under the caption “Description of Capital Stock,” the terms “we,” “us” and “our” refer solely to Comcast Corporation and
such references do not include any subsidiaries of Comcast Corporation, including the Guarantors.
General
The senior debt securities will constitute our unsecured and unsubordinated obligations. The debt securities will be fully and
unconditionally guaranteed by the Guarantors, as described below. The debt securities will not be guaranteed by any of our other subsidiaries, including the Guarantors’ respective subsidiaries.
We are a holding company and conduct all of our operations through subsidiaries. Consequently, our ability to pay our obligations,
including our obligation to pay interest on the debt securities, to repay the principal amount of the debt securities at maturity or upon redemption or to buy back the debt securities will depend upon our subsidiaries’ earnings and their
distribution of those earnings to us and upon our subsidiaries repaying investments and advances we have made to them. Our subsidiaries are separate and distinct legal entities and, except for the Guarantors with respect to the Guarantees, have no
obligation, contingent or otherwise, to pay any amounts due on the debt securities or to make funds available to us to do so. Our subsidiaries’ ability to pay dividends or make other payments or advances to us will depend upon their operating
results and will be subject to applicable laws and contractual restrictions. Our indentures will not limit our subsidiaries’ ability to enter into other agreements that prohibit or restrict dividends or other payments or advances to us.
You should look in the applicable prospectus supplement for the following terms of the debt securities being offered:
|
|
•
|
|
the designation of the debt securities;
|
|
|
•
|
|
the aggregate principal amount of the debt securities;
|
|
|
•
|
|
the percentage of their principal amount (i.e., price) at which the debt securities will be issued;
|
|
|
•
|
|
the date or dates on which the debt securities will mature and the right, if any, to extend such date or dates;
|
|
|
•
|
|
the rate or rates, if any, per year, at which the debt securities will bear interest, or the method of determining such rate or rates;
|
|
|
•
|
|
the date or dates from which such interest will accrue, the interest payment dates on which such interest will be payable or the manner of
determination of such interest payment dates and the record dates for the determination of holders to whom interest is payable on any interest payment dates;
|
|
|
•
|
|
the right, if any, to extend the interest payment periods and the duration of that extension;
|
|
|
•
|
|
the currency, currencies or currency units for which you may purchase the debt securities and the currency, currencies or currency units in which
principal and interest, if any, on the debt securities may be payable;
|
6
|
|
•
|
|
provisions for a sinking fund purchase or other analogous fund, if any;
|
|
|
•
|
|
the period or periods, if any, within which, the price or prices of which, and the terms and conditions upon which the debt securities may be redeemed,
in whole or in part, at our option or at your option;
|
|
|
•
|
|
the form of the debt securities;
|
|
|
•
|
|
any provisions for payment of additional amounts for taxes and any provision for redemption, if we must pay such additional amounts in respect of any
debt security;
|
|
|
•
|
|
the terms and conditions, if any, upon which we may have to repay the debt securities early at your option and the price or prices in the currency or
currency unit in which the debt securities are payable;
|
|
|
•
|
|
the terms and conditions, if any, pursuant to which the debt securities may be converted or exchanged for the cash value of other securities issued by
us or by a third party;
|
|
|
•
|
|
the right, if any, to “reopen” a series of the debt securities and issue additional debt securities of such series; and
|
|
|
•
|
|
any other terms of the debt securities, including any additional events of default or covenants provided for with respect to the debt securities, and
any terms which may be required by or advisable under applicable laws or regulations.
|
You may present debt
securities for exchange and for transfer in the manner, at the places and subject to the restrictions set forth in the debt securities and the prospectus supplement. We will provide you those services without charge, although you may have to pay any
tax or other governmental charge payable in connection with any exchange or transfer, as set forth in the indenture.
Debt
securities will bear interest at a fixed rate or a floating rate. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal
amount. Special U.S. federal income tax considerations applicable to any such discounted debt securities or to certain debt securities issued at par which are treated as having been issued at a discount for U.S. federal income tax purposes will be
described in the relevant prospectus supplement.
We may issue debt securities with the principal amount payable on any
principal payment date, or the amount of interest payable on any interest payment date, to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices or indices. You may receive a payment
of principal on any principal payment date, or a payment of interest on any interest payment date, that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value on such dates of the
applicable currency, security or basket of securities, commodity or index. Information as to the methods for determining the amount of principal or interest payable on any date, the currencies, securities or baskets of securities, commodities or
indices to which the amount payable on such date is linked and certain additional tax considerations will be set forth in the applicable prospectus supplement.
Certain Definitions
As used in this section, the following terms have the
meanings set forth below.
“
Aggregate Debt
” means, with respect to an Obligor, the sum of the following as of
the date of determination:
(a) the aggregate principal amount of such Obligor’s Indebtedness incurred after the date of
initial issuance of the senior debt securities and secured by Liens not permitted by the first sentence under “—
Limitation on Liens Securing Indebtedness
”; and
(b) such Obligor’s Attributable Liens in respect of sale and lease-back transactions entered into after the date of the initial
issuance of the senior debt securities pursuant to the second paragraph of “—
Limitation on Sale and Lease-Back Transactions
.”
7
“
Attributable Liens
” means in connection with a sale and lease-back
transaction of an Obligor the lesser of:
(a) the fair market value of the assets subject to such transaction (as determined in
good faith by our board of directors (in our case) or the equivalent governing body of any Guarantor); and
(b) the present
value (discounted at a rate per annum equal to the average interest borne by all outstanding debt securities issued under the senior indenture (which may include debt securities in addition to the senior debt security) determined on a weighted
average basis and compounded semi-annually) of the obligations of the lessee for rental payments during the term of the related lease.
“
Capital Lease
” means any Indebtedness represented by a lease obligation of a Person incurred with respect to real property or equipment acquired by such Person or leased and used in its
business that would be required to be recorded as a capital lease in accordance with GAAP as in effect as of the date of the senior indenture, whether entered into before or after the date of the senior indenture.
“
Consolidated Net Worth
” of any Person means, as of any date of determination, stockholders’ equity or
members’ capital of such Person as reflected on the most recent consolidated balance sheet of such Person and prepared in accordance with GAAP.
“
GAAP
” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect in the United
States as of (i) the date of the senior indenture, for purposes of the definition of “Capital Lease” and (ii) the date of determination, for all other purposes under the senior indenture.
“
Governmental Obligations
” means securities that are (i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such
depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of
the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“
Indebtedness
” of any specified Person means, without duplication, any indebtedness in respect of borrowed money or that is evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements with respect thereto) or representing the balance deferred and unpaid of the purchase price of any property (including pursuant to Capital Leases), except any such balance that constitutes an accrued
expense, trade payable or other payable in the ordinary course, if and to the extent any of the foregoing indebtedness would appear as a liability upon an unconsolidated balance sheet of such Person (but does not include contingent liabilities which
appear only in a footnote to a balance sheet).
“
Lien
” means any lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
“
Obligor
” means us and the Guarantors.
8
“
Permitted
Liens
” means, with respect to an Obligor:
(a) Liens on any of such Obligor’s assets, created solely to secure obligations incurred to finance the refurbishment, improvement or
construction of such asset, which obligations are incurred no later than 24 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(b)(i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including
acquisition through merger or consolidation) of Property (including shares of stock), including Capital Lease transactions in connection with any such acquisition, provided that with respect to this clause (i) the Liens shall be given within 24
months after such acquisition and shall attach solely to the Property acquired or purchased and any improvements then or thereafter placed thereon, (ii) Liens existing on Property at the time of acquisition thereof or at the time of acquisition by
such Obligor of any Person then owning such Property whether or not such existing Liens were given to secure the payment of the purchase price of the Property to which they attach, and (iii) all renewals, extensions, refinancings, replacements or
refundings of such obligations under this clause (b);
(c) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the importation of goods;
(d) Liens for taxes not yet
due or that are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on such Obligor’s books in conformity with GAAP;
(e) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other Property relating to
such letters of credit and the products and proceeds thereof;
(f) Liens encumbering customary initial deposits and margin
deposits and other Liens in the ordinary course of business, in each case securing hedging obligations and forward contracts, options, futures contracts, futures options, equity hedges or similar agreements or arrangements designed to protect such
Obligor from fluctuations in interest rates, currencies, equities or the price of commodities;
(g) Liens in favor of us or
any Guarantor;
(h) inchoate Liens incident to construction or maintenance of real property, or Liens incident to construction
or maintenance of real property, now or hereafter filed of record for sums not yet delinquent or being contested in good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(i) statutory Liens arising in the ordinary course of business with respect to obligations which are not delinquent or are
being contested in good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(j) Liens consisting of pledges or deposits to secure obligations under workers’ compensation laws or similar legislation, including Liens of judgments thereunder which are not currently
dischargeable;
(k) Liens consisting of pledges or deposits of Property to secure performance in connection with operating
leases made in the ordinary course of business to which such Obligor is a party as lessee, provided the aggregate value of all such pledges and deposits in connection with any such lease does not at any time exceed 16 2/3% of the annual fixed
rentals payable under such lease;
(l) Liens consisting of deposits of Property to secure such Obligor’s statutory
obligations in the ordinary course of our business;
9
(m) Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or
customs bonds in proceedings to which such Obligor is a party in the ordinary course of its business, but not in excess of $25,000,000;
(n) Liens on “margin stock” (as defined in Regulation U of the Board of Governors of the Federal Reserve System);
(o) Liens permitted under sale and lease-back transactions, and any renewals or extensions thereof, so long as the Indebtedness secured thereby does not exceed $300,000,000 in the aggregate;
(p) Liens arising in connection with asset securitization transactions, so long as the aggregate outstanding principal amount of the
obligations of all Obligors secured thereby does not exceed $300,000,000 at any one time;
(q) Liens securing any account or
trade receivable factoring, securitization, sale or financing facility, the obligations of which are non-recourse (except with respect to customary representations, warranties, covenants and indemnities made in connection with such facility) to the
applicable Obligor;
(r) Liens (i) of a collection bank on the items in the course of collection, (ii) in favor of a banking
or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are customary in the banking industry and (iii) attaching to other
prepayments, deposits or earnest money in the ordinary course of business; and
(s) Take-or-pay obligations arising in the
ordinary course of business.
“
Person
” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, unincorporated organization, or any other entity, including any government or any agency or political subdivision thereof.
“
Property
” means with respect to any Person any property or asset, whether real, personal or mixed, or tangible or
intangible, including shares of capital stock.
“
Subsidiary
” of any specified Person means any corporation,
limited liability company, limited partnership, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
Certain Terms of the Senior Debt Securities
Guarantees
Our obligations under the senior debt securities,
including the payment of principal, premium, if any, and interest, will be fully and unconditionally guaranteed by each of the Guarantors. The Guarantees will rank equally with all other general unsecured and unsubordinated obligations of the
Guarantors.
The Guarantees will not contain any restrictions on the ability of any Guarantor to:
|
|
•
|
|
pay dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of that Guarantor’s capital
stock or
|
|
|
•
|
|
make any payment of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of that Guarantor.
|
10
Certain Covenants
We and the Guarantors have agreed to some restrictions on our activities for the benefit of holders of all series of senior debt
securities issued under the senior indenture. The restrictive covenants summarized below will apply, unless the covenants are waived or amended, so long as any of the senior debt securities are outstanding.
The senior indenture does not contain any financial covenants other than those summarized below and does not restrict us or our
subsidiaries from paying dividends or incurring additional debt. In addition, the senior indenture will not protect holders of notes issued under it in the event of a highly leveraged transaction or a change in control.
Limitation on Liens Securing Indebtedness.
With respect to the senior debt securities of each series, each Obligor will covenant
under the senior indenture not to create or incur any Lien on any of its Properties, whether owned at the time the senior indenture is executed or acquired afterward, in order to secure any of its Indebtedness, without effectively providing that the
senior debt securities of such series shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except
:
|
|
•
|
|
Liens existing as of the date of initial issuance of the senior debt securities of such series;
|
|
|
•
|
|
Liens granted after the date of initial issuance of the senior debt securities of such series, created in favor of the registered holders of the senior
debt securities of such series;
|
|
|
•
|
|
Liens securing such Obligor’s Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be
incurred under the lien restriction covenant of the senior indenture, so long as such Liens are limited to all or part of substantially the same Property which secured the Liens extended, renewed or replaced and the amount of Indebtedness secured is
not increased (other than by the amount equal to any costs and expenses (including any premiums, fees or penalties) incurred in connection with any extension, renewal or refinancing); and
|
Notwithstanding the restrictions above, any Obligor may, without securing the senior debt securities of any series, create or incur Liens which would otherwise be subject to the restrictions set forth
above, if after giving effect to those Liens, the Obligor’s Aggregate Debt together with the Aggregate Debt of each other Obligor does not exceed the greater of (i) 15% of Comcast’s Consolidated Net Worth calculated as of the date of the
creation or incurrence of the Lien and (ii) 15% of Comcast’s Consolidated Net Worth calculated as of the date of initial issuance of the senior debt securities of such series; provided that Liens created or incurred pursuant to the terms
described in this paragraph may be extended, renewed or replaced so long as the amount of Indebtedness secured by such Liens is not increased (other than by the amount equal to any costs and expenses (including any premiums, fees or penalties)
incurred in connection therewith) and such refinancing Indebtedness, if then outstanding, is included in subsequent calculations of Aggregate Debt of such Obligor.
Limitation on Sale and Lease-Back Transactions
. With respect to the senior debt securities of each series, each Obligor will covenant under the senior indenture not to enter into any sale and
lease-back transaction for the sale and leasing back of any Property, whether owned at the time the senior indenture is executed or acquired afterward, unless:
|
|
•
|
|
such transaction was entered into prior to the date of the initial issuance of the senior debt securities of such series;
|
|
|
•
|
|
such transaction was for the sale and leasing back to such Obligor of any Property by one of its Subsidiaries;
|
|
|
•
|
|
such transaction involves a lease for less than three years;
|
11
|
|
•
|
|
such Obligor would be entitled to incur Indebtedness secured by a mortgage on the Property to be leased in an amount equal to the Attributable Liens
with respect to such sale and lease-back transaction without equally and ratably securing the senior debt securities of such series pursuant to the first paragraph of “—
Limitation
on Liens Securing Indebtedness
” above;
or
|
|
|
•
|
|
such Obligor applies an amount equal to the fair value of the Property sold to the purchase of Property or to the retirement of its long-term
Indebtedness within 365 days of the effective date of any such sale and lease-back transaction. In lieu of applying such amount to such retirement, such Obligor may deliver senior debt securities to the trustee therefor for cancellation, such senior
debt securities to be credited at the cost thereof to the Obligor.
|
Notwithstanding the previous paragraph
(including the bulleted list), any Obligor may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions with respect to the senior debt securities of any series if after giving effect thereto and
at the time of determination, its Aggregate Debt together with the Aggregate Debt of all other Obligors does not exceed the greater of (i) 15% of Comcast’s Consolidated Net Worth calculated as of the closing date of the sale and lease-back
transaction and (ii) 15% of Comcast’s Consolidated Net Worth calculated as of the date of initial issuance of the senior debt securities of such series.
Consolidation, Merger and Sale of Assets
.
We will not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose
of all or substantially all of our assets to any Person or Persons (other than a transfer or other disposition of assets to any of our wholly owned Subsidiaries), in a single transaction or through a series of transactions, unless:
|
|
•
|
|
we shall be the continuing Person or, if we are not the continuing Person, the resulting, surviving or transferee Person (the “surviving
entity”) is a company or limited liability company organized (or formed in the case of a limited liability company) and existing under the laws of the United States or any State or territory thereof or the District of Columbia;
|
|
|
•
|
|
the surviving entity will expressly assume all of our obligations under the senior debt securities and the indenture and will execute a supplemental
indenture, in a form satisfactory to the trustee, which will be delivered to the trustee;
|
|
|
•
|
|
immediately after giving effect to such transaction or series of transactions on a pro forma basis, no default has occurred and is continuing; and
|
|
|
•
|
|
we or the surviving entity will have delivered to the trustee an officer’s certificate and opinion of counsel stating that the transaction or
series of transactions and a supplemental indenture, if any, complies with this covenant and that all conditions precedent in the indenture relating to the transaction or series of transactions have been satisfied.
|
The restrictions in the third bullet above shall not be applicable to:
|
|
•
|
|
the merger or consolidation of us with an affiliate if our board of directors, determines in good faith that the purpose of such transaction is
principally to change our state of incorporation or convert our form of organization to another form; or
|
|
|
•
|
|
the merger of us with or into a single direct or indirect wholly owned subsidiary pursuant to Section 1924(b)(4) (or any successor provision) of the
Business Corporation Law of the State of Pennsylvania or Section 251(g) (or any successor provision) of the General Corporation Law of the State of Delaware (or similar provision of our state of incorporation).
|
If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of
our assets occurs in accordance with the indenture, the successor person will succeed to,
12
and be substituted for, and may exercise every right and power of ours under the indenture with the same effect as if such successor person had been named in our place in the indenture. We will
(except in the case of a lease) be discharged from all obligations and covenants under the indenture and any debt securities issued thereunder (including the senior debt securities).
Existence
. Except as permitted under “—
Consolidation, Merger and Sale of Assets
,” the indenture requires us
to do or cause to be done all things necessary to preserve and keep in full force and effect our existence, rights and franchises; provided, however, that we shall not be required to preserve any right or franchise if we determine that its
preservation is no longer desirable in the conduct of business.
Information
.
We will furnish to the trustee any
document or report we are required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act within 15 days after such document or report is filed with the SEC; provided that in each case the delivery of materials to the
Trustee by electronic means or filing documents pursuant to the SEC’s “EDGAR” system (or any successor electronic filing system) shall be deemed to constitute “filing” with the trustee for purposes of this covenant. Delivery
of the reports, information and documents required by this section to be delivered to the trustee is for informational purposes only and the trustee’s receipt of such shall not constitute constructive notice of any information contained therein
or determinable from information contained therein.
Events of Default
Each of the following will constitute an event of default in the senior indenture with respect to the senior debt securities of any
series:
(a) default in paying interest on the senior debt securities of such series when it becomes due and the default
continues for a period of 30 days or more;
(b) default in paying principal on the senior debt securities of such series when
due;
(c) default by any Obligor in the performance, or breach, of any covenant in the senior indenture (other than defaults
specified in clause (a) or (b) above) and the default or breach continues for a period of 90 days or more after we receive written notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal
amount of the senior debt securities of all affected series and the debt securities of all other affected series outstanding under the senior indenture (voting together as a single class);
(d) certain events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect to us or any Obligor
have occurred; or
(e) any Guarantee shall not be (or shall be claimed by the relevant Guarantor not to be) in full force and
effect.
If an event of default (other than an event of default specified in clause (d) above) under the senior indenture
occurs and is continuing, then the trustee may and, at the direction of the holders of at least 25% in aggregate principal amount of the senior debt securities of all affected series and the debt securities of all other affected series outstanding
under the senior indenture (voting together as a single class), will by written notice, require us to repay immediately the entire principal amount of the outstanding debt securities of each affected series, together with all accrued and unpaid
interest.
If an event of default under the senior indenture specified in clause (d) occurs and is continuing, then the entire
principal amount of the outstanding senior debt securities will automatically become due immediately and payable without any declaration or other act on the part of the trustee or any holder.
13
After a declaration of acceleration or any automatic acceleration under clause (d) described
above, the holders of a majority in principal amount of the outstanding senior debt securities of any series (each such series voting as a separate class) may rescind this accelerated payment requirement with respect to the senior debt securities of
such series if all existing events of default with respect to the senior debt securities of such series, except for nonpayment of the principal and interest on the senior debt securities of such series that have become due solely as a result of the
accelerated payment requirement, have been cured or waived and if the rescission of acceleration would not conflict with any judgment or decree and if all sums paid or advanced by the trustee under the senior indenture and the reasonable
compensation, expenses, disbursements and advances of the trustee and its agents and counsel have been paid.
The holders of a
majority in principal amount of the senior debt securities of all affected series and the debt securities of all other affected series outstanding under the senior indenture (voting together as a single class) may, by written notice to us and the
trustee, also waive past defaults, except a default in paying principal or interest on any outstanding senior debt security of such series, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all
affected holders of the senior debt securities of such series.
The holders of at least 25% in aggregate principal amount of
the senior debt securities of all affected series and the debt securities of all other affected series outstanding under the senior indenture (voting together as a single class) may seek to institute a proceeding only after they have made written
request, and offered indemnity reasonably satisfactory to the trustee, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it received this request and offer of indemnity. In addition, within this 60-day
period the trustee must not have received directions inconsistent with this written request by holders of a majority in principal amount of the senior debt securities of all affected series and the debt securities of all other affected series then
outstanding. These limitations do not apply, however, to a suit instituted by a holder of the senior debt securities of any affected series for the enforcement of the payment of principal or interest on or after the due dates for such payment.
During the existence of an event of default of which a responsible officer of the trustee has actual knowledge or has
received written notice from us or any holder of the senior debt securities, the trustee is required to exercise the rights and powers vested in it under the senior indenture, and use the same degree of care and skill in its exercise, as a prudent
person would under the circumstances in the conduct of that person’s own affairs. If an event of default has occurred and is continuing, the trustee is not under any obligation to exercise any of its rights or powers at the request or direction
of any of the holders unless the holders have offered to the trustee security or indemnity reasonably satisfactory to the trustee. Subject to certain provisions, the holders of a majority in aggregate principal amount of the senior debt securities
of all affected series and the debt securities of all other affected series outstanding under the senior indenture (voting together as a single class) have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust, or power conferred on the trustee.
The trustee will, within 90 days after
any default occurs with respect to the senior debt securities of any series, give notice of the default to the holders of the senior debt securities of such series, unless the default was already cured or waived. Unless there is a default in paying
principal or interest when due, the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.
We are required to furnish to the trustee an annual statement as to compliance with all conditions and covenants under the senior
indenture within 120 days of the end of each fiscal year.
14
Discharge and Defeasance
We may terminate our obligations and the obligations of the Guarantors under the indenture with respect to the senior debt securities of
any series and the Guarantees of such series of senior debt securities, when:
|
|
•
|
|
all the senior debt securities of such series that have been authenticated and delivered have been canceled or delivered to the trustee for
cancellation; or
|
|
|
•
|
|
all the senior debt securities of such series issued that have not been canceled or delivered to the trustee for cancellation have become due and
payable, are by their terms to become due and payable at final maturity within one year, or are to be called for redemption within one year, under irrevocable arrangements satisfactory to the trustee for the giving of notice of redemption by such
trustee in our name, and at our expense, and we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire indebtedness on the senior debt securities of such series to pay principal and
interest;
|
|
|
•
|
|
we have paid or caused to be paid all other sums then due and payable under the indenture with respect to the senior debt securities of such series;
and
|
|
|
•
|
|
we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent under the
indenture relating to the satisfaction and discharge of the indenture with respect to the senior debt securities of such series have been complied with.
|
We may elect to have our obligations under the indenture discharged with respect to the senior debt securities of any series and the obligations of the Guarantors discharged with respect to the Guarantees
of such senior debt securities (“legal defeasance”). Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the senior debt securities of a series, except for:
|
|
•
|
|
the rights of holders of the senior debt securities of such series to receive principal or interest when due;
|
|
|
•
|
|
our obligations with respect to the senior debt securities of such series concerning issuing temporary senior debt securities, registration of transfer
and exchange of senior debt securities, substitution of mutilated, defaced, destroyed, lost or stolen senior debt securities and the maintenance of an office or agency for payment of the senior debt securities of such series;
|
|
|
•
|
|
the rights, powers, trusts, duties and immunities of the trustee and the provisions relating to the resignation and removal of the trustee and the
appointment of a successor trustee; and
|
|
|
•
|
|
the defeasance provisions of the indenture.
|
In addition, we may elect to have our and the Guarantors’ obligations released with respect to certain covenants in the indenture (“covenant defeasance”). In the event covenant defeasance
occurs, certain events, not including nonpayment, bankruptcy and insolvency events, described under “—
Events of Default
” will no longer constitute an event of default for that series.
In order to exercise either legal defeasance or covenant defeasance with respect to outstanding senior debt securities and Guarantees of
any series:
|
|
•
|
|
we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to the benefits of the holders of the senior debt securities of such series:
|
|
|
•
|
|
U.S. Government Obligations (measured with respect to the scheduled payments of principal and interest thereon); or
|
15
|
|
•
|
|
a combination of cash and U.S. Government Obligations;
|
in each case sufficient without reinvestment, in the written opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied by the trustee to
pay and discharge, all of the principal and interest due on or prior to maturity or if we have made irrevocable arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in our name and at our expense, due on or
prior to the redemption date;
|
|
•
|
|
in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, as a result of an Internal Revenue Service
(“IRS”) ruling or a change in applicable federal income tax law, the holders of the senior debt securities of such series will not recognize gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge
to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
|
|
|
•
|
|
in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the senior debt securities
of such series will not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant
defeasance did not occur;
|
|
|
•
|
|
no default with respect to the outstanding senior debt securities of such series has occurred and is continuing at the time of such deposit after
giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit (other than an event of default
resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), it being understood that this condition is not deemed satisfied until after the 91st day;
|
|
|
•
|
|
the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act,
assuming all senior debt securities of such series were in default within the meaning of such act;
|
|
|
•
|
|
the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under the indenture (other than an
event of default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), the Guarantors or any other material agreement or instrument to which we are a party;
|
|
|
•
|
|
the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such act or exempt from registration; and
|
|
|
•
|
|
we have delivered to the trustee an officer’s certificate and an opinion of counsel, in each case stating that all conditions precedent with
respect to the legal defeasance or covenant defeasance have been complied with.
|
Modification and
Waiver
We, the Guarantors and the trustee may amend or modify the senior indenture or the senior debt securities of
any series without notice to or the consent of any holder in order to:
|
|
•
|
|
cure any ambiguities, omissions, defects or inconsistencies in the senior indenture in a manner that does not adversely affect the interests of the
holders in any material respect;
|
|
|
•
|
|
make any change that would provide any additional rights or benefits to the holders of the senior debt securities;
|
|
|
•
|
|
provide for or add guarantors with respect to the senior debt securities;
|
|
|
•
|
|
secure the senior debt securities of any series;
|
16
|
|
•
|
|
establish the form or terms of senior debt securities of any series;
|
|
|
•
|
|
provide for uncertificated senior debt securities in addition to or in place of certificated senior debt securities;
|
|
|
•
|
|
evidence and provide for the acceptance of appointment by a successor trustee;
|
|
|
•
|
|
provide for the assumption by our successor, if any, to our or their obligations to holders of any outstanding senior debt securities in compliance
with the applicable provisions of the indenture;
|
|
|
•
|
|
qualify the indenture under the Trust Indenture Act;
|
|
|
•
|
|
conform any provision in the indenture to this “Description of Debt Securities and Guarantees”; or
|
|
|
•
|
|
make any change that does not adversely affect the rights of any holder in any material respect.
|
Other amendments and modifications of the senior indenture or the senior debt securities of any series may be made with the consent of
the holders of not less than a majority in aggregate principal amount of the senior debt securities of all series and the debt securities of all other series outstanding under the indenture that are affected by the amendment or modification (voting
together as a single class), and our compliance with any provision of the indenture with respect to the debt securities of any series issued under the indenture (including the senior debt securities) may be waived by written notice to us and the
trustee by the holders of a majority in aggregate principal amount of the debt securities of all series outstanding under the indenture that are affected by the waiver (voting together as a single class). However, no modification or amendment may,
without the consent of the holder of such affected senior debt security:
|
|
•
|
|
reduce the principal amount, or extend the fixed maturity, of the senior debt securities of such series or alter or waive the redemption provisions of
the senior debt securities of such series;
|
|
|
•
|
|
impair the right of any holder of the senior debt securities of such series to receive payment of principal or interest on the senior debt securities
of such series on and after the due dates for such principal or interest;
|
|
|
•
|
|
change the currency in which principal, any premium or interest is paid;
|
|
|
•
|
|
reduce the percentage in principal amount outstanding of senior debt securities of such series which must consent to an amendment, supplement or waiver
or consent to take any action;
|
|
|
•
|
|
impair the right to institute suit for the enforcement of any payment on the senior debt securities of such series;
|
|
|
•
|
|
waive a payment default with respect to the senior debt securities of such series;
|
|
|
•
|
|
reduce the interest rate or extend the time for payment of interest on the senior debt securities of such series; or
|
|
|
•
|
|
adversely affect the ranking of the senior debt securities of such series.
|
An amendment, supplemental indenture or waiver which changes, eliminates or waives any covenant or other provision of the indenture which
has expressly been included solely for the benefit of one or more particular series of debt securities, or which modifies the rights of the holders of debt securities of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under the indenture of the holders of debt securities of any other series.
No Personal
Liability of Incorporators, Stockholders, Officers, Directors, or Employees
The senior indenture provides that no
recourse shall be had under or upon any obligation, covenant or agreement contained in the senior indenture, the Guarantees or in any senior debt security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as
such, or against any past, present or future stockholder, employee, officer or director, as such, of us, any Guarantor, or of any of their respective
17
successors, either directly or through us, any Guarantor, or of any of their respective successors, 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 senior debt securities by the holders thereof and as part of the consideration for the issue of the
senior debt securities.
Concerning the Trustee
Except during the continuance of an event of default, the trustee need perform only those duties that are specifically set forth in the
senior indenture and no others, and no implied covenants or obligations will be read into the senior indenture against the trustee. In case an event of default of which a certain officers of the trustee shall have actual knowledge or shall have
received written notice from us or any holder of our senior debt securities of any series has occurred and is continuing, the trustee shall exercise those rights and powers vested in it by the senior indenture, 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 such person’s own affairs.
Governing Law
The senior indenture, including any Guarantee, and
each senior debt security is governed by and construed in accordance with the laws of the State of New York.
The
Trustee
We may have normal banking relationships with the trustee under the senior indenture in the ordinary course of
business.
Gerald L. Hassell, one of our directors, is the Chairman and Chief Executive Officer and a director of the trustee.
Convertible Debt Securities
The terms, if any, on which debt securities being offered may be exchanged for or converted into other debt securities or shares of preferred stock, Class A common stock or Class A Special
common stock or other securities or rights of ours (including rights to receive payments in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any
combination of the foregoing will be set forth in the prospectus supplement for such debt securities being offered.
18
GLOBAL SECURITIES
We may issue the debt securities, warrants, purchase contracts and units of any series in the form of one or more fully registered global
securities that will be deposited with a depositary or with a nominee for a depositary identified in the prospectus supplement relating to such series and registered in the name of the depositary or its nominee. In that case, one or more global
securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of outstanding registered securities of the series to be represented by such global securities. Unless and until
the depositary exchanges a global security in whole for securities in definitive registered form, the global security may not be transferred except as a whole by the depositary to a nominee of the depositary or by a nominee of the depositary to the
depositary or another nominee of the depositary or by the depositary or any of its nominees to a successor of the depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any portion of a series of securities to be represented by a global security will be described in the prospectus supplement relating to
such series. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial
interests in a global security will be limited to persons that have accounts with the depositary for such global security known as “participants” or persons that may hold interests through such participants. Upon the issuance of a global
security, the depositary for such global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities represented by such global security
beneficially owned by such participants. The accounts to be credited shall be designated by any dealers, underwriters or agents participating in the distribution of such securities. Ownership of beneficial interests in such global security will be
shown on, and the transfer of such ownership interests will be effected only through, records maintained by the depositary for such global security (with respect to interests of participants) and on the records of participants (with respect to
interests of persons holding through participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in global securities.
So long as the depositary for a global security, or its
nominee, is the registered owner of such global security, such depositary or such nominee, as the case may be, will be considered the sole owner or holder of the securities represented by such global security for all purposes under the applicable
indenture, warrant agreement, purchase contract or unit agreement. Except as set forth below, owners of beneficial interests in a global security will not be entitled to have the securities represented by such global security registered in their
names, will not receive or be entitled to receive physical delivery of such securities in definitive form and will not be considered the owners or holders thereof under the applicable indenture, warrant agreement, purchase contract or unit
agreement. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of the depositary for such global security and, if such person is not a participant, on the procedures of the participant through which
such person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement, purchase contract or unit agreement. We understand that under existing industry practices, if we request any action of holders or if
an owner of a beneficial interest in a global security desires to give or take any action which a holder is entitled to give or take under the applicable indenture, warrant agreement, purchase contract or unit agreement, the depositary for such
global security would authorize the participants holding the relevant beneficial interests to give or take such action, and such participants would authorize beneficial owners owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest
payments on debt securities, and any payments to holders with respect to warrants, purchase contracts or units represented by a global security registered in the name of a depositary or its nominee will be made to such depositary or its nominee, as
the case may be, as the registered owner of such global security. None of us, the trustees, the warrant agents, the unit agents or any of our other
19
agents, agent of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to or payments made on account of
beneficial ownership interests in such global security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
We expect that the depositary for any securities represented by a global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or commodities
to holders in respect of such global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in such global security as shown on the records of such depositary. We also expect
that payments by participants to owners of beneficial interests in such global security held through such participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the
accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such participants.
If the depositary for any securities represented by a global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and
we do not appoint a successor depositary registered as a clearing agency under the Exchange Act within 90 days, we will issue such securities in definitive form in exchange for such global security. In addition, we may at any time and in our sole
discretion determine not to have any of the securities of a series represented by one or more global securities and, in such event, will issue securities of such series in definitive form in exchange for all of the global security or securities
representing such securities. Any securities issued in definitive form in exchange for a global security will be registered in such name or names as the depositary shall instruct the relevant trustee, warrant agent or other relevant agent of ours.
We expect that such instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in such global security.
20
DESCRIPTION OF CAPITAL STOCK
In this section, references to the “Company,” “we,” “us” and “our” refer only to Comcast
Corporation and not any of its subsidiaries. The statements made under this caption include summaries of certain provisions contained in our articles of incorporation and
by-laws.
These statements do not
purport to be complete and are qualified in their entirety by reference to such articles of incorporation and
by-laws.
We have three classes of common stock outstanding: Class A common stock, $0.01 par value per share; Class A Special common stock, $0.01 par value per share; and Class B common stock, $0.01 par
value per share. There are currently authorized 7.5 billion shares of Class A common stock, 7.5 billion shares of Class A Special common stock, 75 million shares of Class B common stock and 20 million shares of preferred stock.
Our Board of Directors may issue preferred stock, in one or more series, without par value, with full, limited, multiple, fractional, or no voting rights, and with such designations, preferences, qualifications, privileges, limitations,
restrictions, options, conversion rights and other special rights as our Board of Directors shall determine.
Dividends
Subject to the preferential rights of any preferred stock then outstanding, holders of our Class A common stock, Class A Special
common stock, and Class B common stock are entitled to receive, from time to time, when, as and if declared, in the discretion of our Board, such cash dividends as our Board may from time to time determine, out of such funds as are legally available
therefor, in proportion to the number of shares held by them, respectively, without regard to class.
Holders of our
Class A common stock, Class A Special common stock, and Class B common stock will also be entitled to receive, from time to time, when, as and if declared by our Board, such dividends of our stock or other property as our Board may
determine, out of such funds as are legally available therefor. However, stock dividends on, or stock splits of, any class of common stock will not be paid or issued unless paid or issued on all classes of our common stock, in which case they will
be paid or issued only in shares of that class;
provided
,
however
, that stock dividends on, or stock splits of, our Class B common stock may also be paid or issued in shares of our Class A Special common stock.
We intend to pay quarterly dividends at an annual rate currently of $0.78 per share. See “Dividend Policy” above.
Voting Rights
Except as
required by law, holders of our Class A Special common stock are not entitled to vote. When holders of our Class A Special common stock are entitled to vote by applicable law, each share of our Class A Special common stock has the
same number of votes as each share of our Class A common stock.
As of December 31, 2012, on
all matters submitted for a vote of holders of all classes of our voting stock, holders of our Class A common stock in the aggregate hold 66
2
/
3
% of the aggregate voting power of our capital stock. As of December 31, 2012,
our Class B common stock has a nondilutable 33
1
/
3
% of the combined voting power of our common stock. This nondilutable voting power is subject to proportional decrease to
the extent the number of shares of Class B common stock is reduced below 9,444,375, subject to adjustment in specified situations. Stock dividends payable on the Class B common stock in the form of Class B or Class A Special common stock do not
decrease the nondilutable voting power of the Class B common stock.
Approval Rights
Except as required by law, holders of Class A Special common stock and Class A common stock have no specific approval rights
over any corporate actions. Holders of our Class B common stock have an approval right
21
over (1) any merger of us with another company or any other transaction, in each case that requires our shareholders’ approval under applicable law, or any other transaction that would
result in any person or group owning shares representing in excess of 10% of the aggregate voting power of the resulting or surviving corporation, or any issuance of securities (other than pursuant to director or officer stock option or purchase
plans) requiring our shareholders’ approval under the rules and regulations of any stock exchange or quotation system; (2) any issuance of our Class B common stock or any securities exercisable or exchangeable for or convertible into our
Class B common stock; and (3) charter or
by-law
amendments (such as a charter amendment to opt in to any of the Pennsylvania antitakeover statutes) and other actions (such as the adoption, amendment or
redemption of a shareholder rights plan) that limit the rights of holders of our Class B common stock or any subsequent transferee of our Class B common stock to transfer, vote or otherwise exercise rights with respect to our capital stock.
Principal Shareholder
Brian L. Roberts, our Chairman, Chief Executive Officer and President, beneficially owns all outstanding shares of our Class B common stock, which has a nondilutable 33
1
/
3
% of the combined voting power of our stock and which also has separate approval rights over certain material transactions, as described above under “—Approval Rights.” Accordingly,
Mr. Roberts has considerable influence over our operations and has the ability to transfer potential effective control by selling the Class B common stock. The Class B common stock is convertible on a
share-for-share
basis into Class A common stock or Class A Special common stock. As of June 30, 2013, if Mr. Roberts were to convert the Class B common stock he beneficially owns into
Class A common stock, Mr. Roberts would beneficially own 13,993,718 shares of Class A common stock, which is less than 1% of the Class A common stock that would be outstanding after the conversion.
Conversion of Class B Common Stock
The Class B common stock is convertible share for share into either the Class A common stock or the Class A Special common stock.
Preference on Liquidation
In the event of our liquidation, dissolution or
winding up, either voluntary or involuntary, the holders of Class A Special common stock, Class A common stock and Class B common stock are entitled to receive, subject to any liquidation preference of any preferred stock then outstanding,
our remaining assets, if any, in proportion to the number of shares held by them without regard to class.
Mergers, Consolidations, Etc.
Our charter provides that if in a transaction such as a merger, consolidation, share exchange or recapitalization, holders
of each class of our common stock outstanding do not receive the same consideration for each of their shares of our common stock (i.e., the same amount of cash or the same number of shares of each class of stock issued in the transaction in
proportion to the number of shares of our common stock held by them, respectively, without regard to class), holders of each such class of our common stock will receive “mirror” securities (i.e., shares of a class of stock having
substantially equivalent rights as the applicable class of our common stock).
Miscellaneous
The holders of Class A common stock, Class A Special common stock and Class B common stock do not have any preemptive rights.
All shares of Class A common stock, Class A Special common stock and Class B common stock presently outstanding are, and all shares of the Class A common stock and Class A Special
22
common stock offered hereby, or issuable upon conversion, exchange or exercise of securities offered hereby, will, when issued, be, fully paid and nonassessable. We have been advised that the
Class A common stock and Class A Special common stock are exempt from existing Pennsylvania personal property tax.
The transfer agent and registrar for our Class A Special common stock and Class A common stock is Wells Fargo Shareowner
Services, P.O. Box 64874, St. Paul, Minnesota 55164-0874 . Their telephone number is
(888) 883-8903.
23
PLAN OF DISTRIBUTION
We or selling security holders may sell the securities being offered hereby in four ways:
|
|
•
|
|
directly to purchasers;
|
|
|
•
|
|
through underwriters; and
|
If any securities are sold pursuant to this prospectus by any person other than us, we will disclose in a prospectus supplement required information with respect to each security holder, which may include
its name, the nature of any relationship it has had with us or any of our affiliates during the three years preceding such offering and the amount of securities of the class it owns both before and after the offering.
We or any selling security holder may directly solicit offers to purchase securities, or we or any selling security holder may designate
agents to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act of 1933, as amended, (hereinafter, the “Securities Act”) and
describe any commissions we or any selling security holder must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
If any underwriters are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement with them at the time of sale to them, and we
will set forth in the prospectus supplement relating to such offering their names and the terms of any agreement with them.
If a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we and any selling security
holders will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled under agreements which they may enter into with us or any selling
security holder to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain
or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position
for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate
repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent
market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
Any underwriter, agent or dealer utilized in the initial offering of securities will not confirm sales to accounts over which it exercises discretionary authority without the prior specific written
approval of its customer.
24
LEGAL MATTERS
As to matters governed by Pennsylvania law, Arthur R. Block, Esquire, Senior Vice President, General Counsel and Secretary of Comcast,
and as to matters governed by New York and Delaware law, Davis Polk & Wardwell LLP, will pass upon the validity of the securities on our behalf and on behalf of the Guarantors, although we may use other counsel, including our employees, to
do so. Unless otherwise indicated in the accompanying prospectus supplement, Cahill Gordon & Reindel
LLP
will represent the underwriters.
EXPERTS
The consolidated financial statements
of Comcast Corporation and subsidiaries, incorporated herein by reference from Comcast Corporation’s Current Report on Form 8-K filed with the SEC on September 18, 2013, the related financial statement schedule incorporated in this
prospectus by reference from Comcast Corporation’s Annual Report on Form 10-K for the year ended December 31, 2012 and the effectiveness of Comcast Corporation’s internal control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated financial statements and consolidated financial statement schedule have been
so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements, and the related consolidated financial statement schedule, of NBC Universal, Inc. and its
subsidiaries (predecessor) and NBCUniversal Media, LLC and its subsidiaries (successor) for the period from January 1, 2011 to January 28, 2011 (predecessor period) and for the period from January 29, 2011 to December 31, 2011 and for the year ended
December 31, 2012 (successor period), incorporated in this prospectus by reference from NBCUniversal Media, LLC’s Annual Report on Form 10-K for the year ended December 31, 2012 have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports (which report on the consolidated financial statements expresses an unqualified opinion and includes an explanatory paragraph referring to General Electric Company’s transaction with
Comcast Corporation on January 28, 2011), which are incorporated herein by reference. Such consolidated financial statements and consolidated financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
The consolidated financial statements and financial statement schedule
of NBC Universal, Inc. and its consolidated subsidiaries for the year ended December 31, 2010 (predecessor), appearing in the 2012 Annual Report on Form 10-K of NBCUniversal Media, LLC incorporated in this prospectus by reference from NBCUniversal
Media, LLC’s Annual Report on Form 10-K for the year ended December 31, 2012, have been audited by KPMG LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such
consolidated financial statements and consolidated financial statement schedule have been so incorporated in reliance upon the report of KPMG LLP as experts in accounting and auditing.
AVAILABLE INFORMATION
We have filed this prospectus as part of a combined registration statement on Form
S-3
with the SEC. The registration statement contains exhibits and other
information that are not contained in this prospectus. Our descriptions in this prospectus of the provisions of documents filed as exhibits to the registration statement or otherwise filed with the SEC are only summaries of the documents’
material terms. If you want a complete description of the content of the documents, you should obtain the documents by following the procedures described below.
Comcast and NBCUniversal file annual, quarterly and special reports and other information with the SEC. Comcast Cable, Comcast Cable Holdings, Comcast MO Group and Comcast MO of Delaware do not
currently file information with the SEC. Although the Guarantors other than NBCUniversal would normally be required to
25
file information with the SEC on an ongoing basis, we expect that these Guarantors will be exempt from this filing obligation for as long as we continue to file our information with the SEC.
You may read and copy any document we or NBCUniversal files at the SEC’s public reference room located at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference rooms. Our and NBCUniversal’s SEC filings, including the complete registration statement and all of the exhibits to it, are available
through the SEC’s website at
http://www.sec.gov
.
We have not authorized anyone to provide any information
other than that contained or incorporated by reference in this prospectus, any prospectus supplement, in any free writing prospectus prepared by or on behalf of us or to which we have referred you and in material we or NBCUniversal file with the SEC
and incorporate by reference herein. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer of these securities in any jurisdiction where the
offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus, any prospectus supplement, any such free writing prospectus and our and NBCUniversal’s filings with the SEC is
accurate as of any date other than their respective dates.
26
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information we and NBCUniversal file with them, which means that we and
NBCUniversal can disclose important information to you by referring you directly to those documents. The information incorporated by reference is considered to be part of this prospectus. In addition, information we or NBCUniversal files with the
SEC in the future will automatically update and supersede information contained in this prospectus and any accompanying prospectus supplement.
This prospectus incorporates by reference the documents set forth below that we have previously filed with the SEC:
|
|
•
|
|
Comcast’s Annual Report on Form
10-K
for the year ended December 31, 2012, filed on February 21,
2013.
|
|
|
•
|
|
Comcast’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed on May 1, 2013 and for the quarterly period
ended June 30, 2013, filed on July 31, 2013.
|
|
|
•
|
|
Comcast’s Current Reports on Form 8-K filed on January 9, 2013, February 12, 2013 (except to the extent information is furnished pursuant to Item
7.01), March 19, 2013, March 27, 2013, May 16, 2013, July 24, 2013, August 16, 2013 and September 18, 2013.
|
|
|
•
|
|
The section of Comcast’s Definitive Proxy Statement on Schedule 14A for the 2013 annual meeting of shareholders incorporated by reference in
Comcast’s Annual Report on Form
10-K
for the year ended December 31, 2012.
|
|
|
•
|
|
The description of our capital stock incorporated in Comcast’s Current Report on Form
8-K12G3
and
Registration Statement on Form
8-A12G,
each filed on November 18, 2002, as amended by our Registration Statement on Form
8-A12B/A
filed on December 20, 2010,
as the same may be further amended from time to time.
|
|
|
•
|
|
NBCUniversal’s Annual Report on Form 10-K for the year ended December 31, 2012, filed on February 21, 2013.
|
|
|
•
|
|
NBCUniversal’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed on May 1, 2013 and for the quarterly period
ended June 30, 2013, filed on July 31, 2013.
|
|
|
•
|
|
NBCUniversal’s Current Reports on Form 8-K dated February 12, 2013 (except to the extent information is furnished pursuant to Item 7.01), March
19, 2013 and March 27, 2013.
|
We and NBCUniversal also incorporate by reference into this prospectus
additional documents that we or NBCUniversal may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we sell all of the securities we are offering. Any statements contained in a previously filed document incorporated
by reference into this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies
or supersedes that statement. We will provide free copies of any of those documents, if you write or telephone us at: One Comcast Center, Philadelphia, Pennsylvania 19103-2838,
(215) 286-1700.
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 14.
|
Other Expenses of Issuance and Distribution
|
The following table sets forth the estimated costs and expenses payable by the Registrants in connection with this Registration Statement.
|
|
|
|
|
|
|
|
|
Amount to be
Paid
|
|
|
Registration fee
|
|
$
|
*
|
|
|
Legal fees and expenses
|
|
|
75,000
|
|
|
Printing and engraving fees
|
|
|
50,000
|
|
|
Accounting fees and expenses
|
|
|
45,000
|
|
|
Miscellaneous
|
|
|
30,000
|
|
|
|
|
|
|
|
|
TOTAL
|
|
$
|
200,000
|
|
|
|
|
|
|
|
|
*
|
Omitted because the registration fee is being deferred pursuant to Rule 456(b).
|
|
Item 15.
|
Indemnification of Directors and Officers
|
Comcast Corporation
Indemnification under Pennsylvania Law and
Comcast’s Charter and
By-laws.
Sections 1741 through 1750 of
Subchapter D, Chapter 17, of the Pennsylvania Business Corporation Law (“PBCL”) contain provisions for mandatory and discretionary indemnification of a corporation’s directors, officers and other personnel, and related
matters.
Under Section 1741 of the PBCL, subject to certain limitations, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with an action or proceeding, whether
civil, criminal, administrative or investigative (other than derivative or corporate actions), to which any such officer or director is a party or is threatened to be made a party by reason of such officer or director being a representative of the
corporation or serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or
not-for-profit,
partnership, joint
venture, trust or other enterprise, so long as the director or officer acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, such
officer or director had no reasonable cause to believe his conduct was unlawful.
Section 1742 of the PBCL permits
indemnification in derivative and corporate actions if the director or officer acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, except in respect of any claim, issue or
matter as to which the officer or director has been adjudged to be liable to the corporation unless and only to the extent that the proper court determines upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, the officer or director is fairly and reasonably entitled to indemnity for the expenses that the court deems proper.
Under Section 1743 of the PBCL, indemnification is mandatory to the extent that the officer or director has been successful on the merits or otherwise in defense of any action or proceeding referred
to in Section 1741 or 1742 of the PBCL.
II-1
Section 1744 of the PBCL provides that, unless ordered by a court, any indemnification
under Section 1741 or 1742 of the PBCL shall be made by the corporation only as authorized in the specific case upon a determination that the officer or director met the applicable standard of conduct, and such determination must be made by
(i) the board of directors by a majority vote of a quorum of directors not parties to the action or proceeding, (ii) if a quorum is not obtainable, or if obtainable and a majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the shareholders.
Section 1745 of the PBCL provides
that expenses (including attorneys’ fees) incurred by a director or officer in defending any action or proceeding referred to in Subchapter D of Chapter 17 of the PBCL may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation. Except as otherwise provided in the
corporation’s
by-laws,
advancement of expenses must be authorized by the board of directors.
Section 1746 of the PBCL provides generally that the indemnification and advancement of expenses provided by Subchapter D of Chapter 17 of the PBCL shall not be deemed exclusive of any other
rights to which an officer or director seeking indemnification or advancement of expenses may be entitled under any
by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while holding that office. In no event may indemnification be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court
to have constituted willful misconduct or recklessness.
Section 1747 of the PBCL grants a corporation the power to
purchase and maintain insurance on behalf of any director or officer against any liability incurred by him in his capacity as officer or director, whether or not the corporation would have the power to indemnify him against that liability under
Subchapter D of Chapter 17 of the PBCL.
Sections 1748 and 1749 of the PBCL extend the indemnification and
advancement of expenses provisions contained in Subchapter D of Chapter 17 of the PBCL to successor corporations in fundamental changes and to officers and directors serving as fiduciaries of employee benefit plans.
Section 1750 of the PBCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to,
Subchapter D of Chapter 17 of the PBCL shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer shall inure to the benefit of the heirs and personal representatives of
such person.
Article Twelfth of the Comcast charter provides that no director of Comcast will be personally liable, as
such, for monetary damages (other than under criminal statutes and under laws imposing such liability on directors for the payment of taxes) unless such person’s conduct constitutes self-dealing, willful misconduct or recklessness.
Article Twelfth of the Comcast charter extends such protection to officers.
Article 7 of the Comcast
by-laws
provides that each officer and director of Comcast will be indemnified and held harmless by Comcast to the fullest extent permitted by Pennsylvania law against all expense, liability and loss (including,
without limitation, attorneys’ fees, judgments, fines, taxes, penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such officer or director in connection with any threatened, pending or completed action,
suit or proceeding (including, without limitation, an action, suit or proceeding by or in the right of Comcast), whether civil, criminal, administrative or investigative (a “Proceeding”). No indemnification will be made, however, in any
case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness, or in connection with a Proceeding (or part of a Proceeding) initiated by an officer
or director (except in connection with a Proceeding to enforce a right to indemnification or advancement of expenses), unless the Proceeding (or part of the Proceeding) was authorized by the Board of Directors. The right to indemnification includes
the right to have
II-2
the expenses incurred by such director or officer in participating in any Proceeding paid by Comcast in advance of the final disposition of the Proceeding automatically and without any action or
approval required by the Board of Directors, provided that, if Pennsylvania law requires, the payment of expenses incurred by such director or officer in advance of the final disposition of a Proceeding shall only be made upon delivery to Comcast of
an undertaking, by or on behalf of the director or officer, to repay all advanced amounts without interest if it is ultimately determined that the director or officer is not entitled to be so indemnified.
Article 7 of the Comcast
by-laws
also provides that Comcast may purchase and maintain insurance,
at its expense, for the benefit of any person on behalf of whom insurance is permitted to be purchased by Pennsylvania law against any expense, liability or loss, whether or not Comcast would have the power to indemnify such person under
Pennsylvania or any other law. Comcast may also purchase and maintain insurance to insure its indemnification obligations.
The foregoing statements are subject to the detailed provisions of the PBCL and to the applicable provisions of the Comcast charter and
by-laws.
NBCUniversal Media, LLC
NBCUniversal Media, LLC is a limited liability company organized under the laws of the State of Delaware. Section 18-108 of the
Limited Liability Company Act of Delaware permits a limited liability company, subject to any restrictions set forth in its limited liability company agreement, to indemnify its members, managers and officers from and against any and all claims and
demands. Members, managers and officers of NBCUniversal Media, LLC are also entitled to mandatory and discretionary indemnification as described above under “Comcast Corporation.” NBCUniversal, LLC is the sole member of NBCUniversal Media,
LLC.
Comcast maintains standard policies of insurance on behalf of NBCUniversal Media, LLC and NBCUniversal, LLC under which
coverage is provided to their respective officers and NBCUniversal, LLC’s directors against loss arising from claims made by reason of a breach of duty or other wrongful act.
Comcast Cable Communications, LLC
Comcast Cable is a limited liability
company organized under the laws of the State of Delaware.
Section 18-108
of the Delaware Limited Liability Company Act permits a limited liability company, subject to any restrictions that may be set
forth in its limited liability company agreement, to indemnify its members and managers from and against any and all claims and demands.
Section 18.1 of Comcast Cable’s Limited Liability Company Agreement (“LLC Agreement”) provides that Comcast Cable will indemnify the member, Comcast Holdings Corporation, any officer
of Comcast Cable and any officer of Comcast Cable who is or was serving as a director, officer, employee or agent of another entity at Comcast Cable’s request (each, an “Indemnified Person”) against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such Indemnified Person, to the fullest extent permitted by law in connection with any threatened, pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter, a “proceeding”), brought or threatened to be brought against such Indemnified Person by reason of the fact that he or she is or was serving in any such capacity or in
any other capacity on behalf of Comcast Cable, the member or any of Comcast Cable’s subsidiaries. In addition, the member may, by resolution, similarly indemnify any other person (hereinafter, an “Other Person”) for liabilities
incurred by him or her in connection with services rendered by him or her for or at the request of Comcast Cable, the member or any of Comcast Cable’s subsidiaries.
Section 18.2 of Comcast Cable’s LLC Agreement provides that expenses (including attorneys’ fees) incurred by any Indemnified Person in defending a proceeding will be paid by Comcast Cable
in advance of the final disposition of such proceeding as authorized by the member upon receipt of an undertaking, by or on behalf of such Indemnified Person, to repay such amount if it is ultimately determined that he or she is not entitled to be
II-3
indemnified by Comcast Cable as authorized by law. Advance expenses (including attorneys’ fees) incurred by Other Persons may be paid by Comcast Cable if the member deems appropriate and
upon such terms and conditions, including the giving of an undertaking, as the member deems appropriate.
Section 18.4 of
Comcast Cable’s LLC Agreement provides that Comcast Cable may purchase and maintain insurance on behalf of any person who is or was an Indemnified Person or Other Person against any liability asserted against him or her and incurred by him or
her in any such capacity, or arising out of his or her status as such, whether or not Comcast Cable would have the power to indemnify him or her against such liability under applicable law.
Comcast Cable Holdings, LLC
Comcast Cable Holdings is a limited liability
company organized under the laws of the State of Delaware. The indemnification of officers and other persons provided for by Comcast Cable Holdings’ LLC Agreement and the Delaware Limited Liability Company Act is identical to the
indemnification provisions described under “—Comcast Cable Communications, LLC,” except that the member of Comcast Cable Holdings is Comcast Cable.
Comcast MO Group, Inc.
Comcast MO Group is a corporation organized under
the laws of the State of Delaware. Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine,
that despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the Court of Chancery or the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) or (b) or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liabilities under Section 145.
II-4
Article VIII, Section 1 of Comcast MO Group’s Certificate of Incorporation
provides that a director of Comcast MO Group will not be personally liable to Comcast MO Group or its stockholders for monetary damages for breach of fiduciary duty as director, except to the extent this exemption is not permitted by the General
Corporation Law of the State of Delaware. Any repeal or modification of this provision will not affect the rights of a director of Comcast MO Group prior to such repeal or modification.
Article VIII, Section 2 of Comcast MO Group’s Certificate of Incorporation provides that each person who was or is made a party
or is threatened to be made a party to or is otherwise in any way involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he, or the
person of whom he is the legal representative, is or was a director or officer of Comcast MO Group or is or was serving at its request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of the proceeding is alleged action in an official capacity or in any other capacity while serving as a director,
officer, employee, or agent will be indemnified and held harmless by Comcast MO Group to the fullest extent authorized by the General Corporation Law of the State of Delaware against all expense, liability and loss (including attorneys’ fees,
judgments, fines, amounts paid or to be paid in settlement and Employee Retirement Income Security Act of 1974 excise taxes or penalties) reasonably incurred or suffered by the indemnitee in connection with the proceeding. However, except in the
case of proceedings to enforce rights to indemnification, Comcast MO Group will indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by the indemnitee only if the proceeding was authorized by the Board of Directors of
Comcast MO Group. The right to indemnification includes the right to be paid by Comcast MO Group the advancement of expenses incurred in defending any proceeding in advance of its final disposition;
provided
,
however
, that, if the
General Corporation Law of the State of Delaware requires, an advancement of expenses incurred by an indemnitee in his capacity as a director or officer will be made only upon delivery to Comcast MO Group of an undertaking, by or on behalf of the
indemnitee, to repay all amounts so advanced if it is ultimately determined that the indemnitee is not entitled to be indemnified for the expenses. Also, the Board of Directors of Comcast MO Group may grant rights to indemnification as described
above to any of Comcast MO Group’s employees and agents.
If a claim for indemnification is not paid in full within 30
days after a written claim is received by Comcast MO Group, the claimant may bring suit to recover the unpaid amount of the claim, and if successful in whole or in part, the indemnitee will be entitled to be paid also the expense of prosecuting the
suit. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been
tendered) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for Comcast MO Group to indemnify the claimant for the amount claimed, but Comcast MO Group would
bear the burden of proving this defense.
Comcast MO Group may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of Comcast MO Group or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not Comcast MO Group would have the power to indemnify such
person under the General Corporation Law of the State of Delaware.
Comcast MO of Delaware, LLC
Comcast MO of Delaware is a limited liability company organized under the laws of the State of Delaware. The indemnification of officers
and other persons provided for by Comcast MO of Delaware’s LLC Agreement and the Delaware Limited Liability Company Act is identical to the indemnification provisions described under “—Comcast Cable Communications, LLC,” except
that the member of Comcast MO of Delaware is Comcast of Georgia/Virginia, Inc.
II-5
|
Item 16.
|
Exhibits and Financial Statement Schedules
|
|
|
(a)
|
The following exhibits are filed as part of this Registration Statement:
|
|
|
|
|
|
Exhibit No.
|
|
Document
|
|
|
|
|
1.1
|
|
Form of Underwriting Agreement (Debt Securities)*
|
|
|
|
|
1.2
|
|
Form of Underwriting Agreement Standard Provisions (Debt Securities)*
|
|
|
|
|
1.3
|
|
Form of Underwriting Agreement (Preferred Stock, Depositary Shares, Common Stock, Warrants, Purchase Contracts and Units)**
|
|
|
|
|
4.1
|
|
Specimen Class A Common Stock Certificate (incorporated by reference to Comcast’s Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 20,
2003)
|
|
|
|
|
4.2
|
|
Specimen Class A Special Common Stock Certificate (incorporated by reference to Comcast’s Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 20,
2003)
|
|
|
|
|
4.3
|
|
Senior Indenture dated September 18, 2013 among the Company, the guarantors party thereto and The Bank of New York Mellon, as Trustee*
|
|
|
|
|
4.4
|
|
Form of Senior Debt Security*
|
|
|
|
|
4.5
|
|
Form of Purchase Contract Agreement relating to Purchase Contracts**
|
|
|
|
|
4.6
|
|
Form of Unit Agreement**
|
|
|
|
|
4.7
|
|
Form of Warrant Agreement for Warrants sold separately**
|
|
|
|
|
4.8
|
|
Form of Warrant for Warrants sold separately**
|
|
|
|
|
4.9
|
|
Form of Warrant Agreement for Warrants sold attached to other Securities**
|
|
|
|
|
4.10
|
|
Form of Warrant for Warrants sold attached to other Securities**
|
|
|
|
|
4.11
|
|
Form of Pledge Agreement**
|
|
|
|
|
4.12
|
|
Form of Deposit Agreement**
|
|
|
|
|
4.13
|
|
Form of Depositary Share**
|
|
|
|
|
4.14
|
|
Form of Guarantee (Warrants, Purchase Contracts and Units)**
|
|
|
|
|
5.1
|
|
Opinion of Arthur R. Block, Esquire*
|
|
|
|
|
5.2
|
|
Opinion of Davis Polk & Wardwell LLP*
|
|
|
|
|
12.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Dividends of Comcast Corporation (incorporated by
reference to our Annual Report on Form 10-K for the year ended December 31, 2012, filed on February 21, 2013)
|
|
|
|
|
12.2
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Dividends of Comcast Corporation for the six
months ended June 30, 2013*
|
|
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP (Comcast Corporation)*
|
|
|
|
|
23.2
|
|
Consent of Deloitte & Touche LLP (NBCUniversal Media, LLC)*
|
|
|
|
|
23.3
|
|
Consent of KPMG LLP (NBCUniversal Media, LLC)*
|
|
|
|
|
23.4
|
|
Consent of Arthur R. Block, Esquire (included in Exhibit 5.1)
|
|
|
|
|
23.5
|
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.2)
|
|
|
|
|
24.1
|
|
Powers of Attorney (included on the signature pages hereof)
|
|
|
|
|
25.1
|
|
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as Trustee under the Senior Indenture*
|
II-6
|
**
|
To be filed by Current Report on Form
8-K.
|
|
|
(a)
|
The undersigned registrants hereby undertake:
|
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
, that no statement made
II-7
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrants
relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the
undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the
undersigned registrants to the purchaser.
|
|
(b)
|
The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of Comcast Corporation’s
or NBCUniversal’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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)
|
The undersigned registrants hereby undertake to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription
offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
|
|
|
(d)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
|
II-8
SIGNATURES AND POWER OF ATTORNEY FOR COMCAST CORPORATION
Pursuant to the requirements of the Securities Act of 1933, Comcast Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia,
State of Pennsylvania, on September 18, 2013.
|
|
|
|
|
COMCAST CORPORATION
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
|
|
Name:
|
|
Arthur R. Block
|
|
Title:
|
|
Senior Vice President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
Roberts
Brian L. Roberts
|
|
Chairman and CEO; Director
(Principal Executive Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ R
ALPH
J.
R
OBERTS
Ralph J. Roberts
|
|
Founder; Chairman Emeritus of the Board
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Vice Chairman and CFO
(Principal Financial Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Senior Vice President,
Chief Accounting Officer and
Controller
(Principal Accounting Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ K
ENNETH
J.
B
ACON
Kenneth J. Bacon
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ S
HELDON
M.
B
ONOVITZ
Sheldon M. Bonovitz
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ J
OSEPH
J.
C
OLLINS
Joseph J. Collins
|
|
Director
|
|
September 18, 2013
|
II-9
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ J. M
ICHAEL
C
OOK
J. Michael Cook
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ G
ERALD
L.
H
ASSELL
Gerald L. Hassell
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ J
EFFREY
A.
H
ONICKMAN
Jeffrey A. Honickman
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ E
DUARDO
G.
M
ESTRE
Eduardo G. Mestre
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ J
OHNATHAN
A.
R
ODGERS
Johnathan A. Rodgers
|
|
Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ D
R
. J
UDITH
R
ODIN
Dr. Judith Rodin
|
|
Director
|
|
September 18, 2013
|
II-10
SIGNATURES AND POWER OF ATTORNEY FOR NBCUNIVERSAL MEDIA, LLC
Pursuant to the requirements of the Securities Act of 1933, NBCUniversal Media, LLC certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on September 18, 2013.
|
|
|
|
|
NBCUNIVERSAL MEDIA, LLC
|
|
By:
|
|
NBCUNIVERSAL, LLC, its sole member
|
|
|
|
|
|
By:
|
|
/s/ S
TEPHEN
B.
B
URKE
|
|
Name:
|
|
Stephen B. Burke
|
|
Title:
|
|
Chief Executive Officer
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
R
OBERTS
Brian L. Roberts
|
|
Principal Executive Officer of NBCUniversal Media, LLC
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Principal Financial Officer of NBCUniversal Media,
LLC;
Director of NBCUniversal, LLC
|
|
September 18, 2013
|
|
|
|
|
|
/s/ D
AVID
L.
C
OHEN
David L. Cohen
|
|
Executive Vice President;
Director of NBCUniversal, LLC
|
|
September 18, 2013
|
|
|
|
|
|
/s/ A
RTHUR
R.
B
LOCK
Arthur R. Block
|
|
Senior Vice President;
Director of NBCUniversal, LLC
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Principal Accounting Officer of NBCUniversal Media, LLC
|
|
September 18, 2013
|
II-11
SIGNATURES AND POWER OF ATTORNEY FOR
COMCAST CABLE COMMUNICATIONS, LLC
Pursuant to the requirements of the Securities Act of 1933, Comcast Cable Communications, LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, State of Pennsylvania, on September 18, 2013.
|
|
|
|
|
COMCAST CABLE COMMUNICATIONS, LLC
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
|
|
Name:
|
|
Arthur R. Block
|
|
Title:
|
|
Senior Vice President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
R
OBERTS
Brian L. Roberts
|
|
Chairman
(Principal Executive Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Executive Vice President
(Principal Financial Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
September 18, 2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMCAST HOLDINGS CORPORATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
Arthur R. Block
Senior Vice President
|
|
Sole Member
|
|
September 18, 2013
|
II-12
SIGNATURES AND POWER OF ATTORNEY FOR
COMCAST CABLE HOLDINGS, LLC
Pursuant to the requirements of the Securities Act of 1933, Comcast Cable Holdings, LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, State of Pennsylvania, on September 18, 2013.
|
|
|
|
|
COMCAST CABLE HOLDINGS, LLC
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
|
|
Name:
|
|
Arthur R. Block
|
|
Title:
|
|
Senior Vice President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
R
OBERTS
Brian L. Roberts
|
|
Chairman
(Principal Executive Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Executive Vice President
(Principal Financial Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
September 18, 2013
|
|
|
|
|
|
|
|
|
|
|
|
|
COMCAST CABLE COMMUNICATIONS, LLC
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
Arthur R. Block
Senior Vice President
|
|
Sole Member
|
|
September 18, 2013
|
II-13
SIGNATURES AND POWER OF ATTORNEY FOR COMCAST MO GROUP, INC.
Pursuant to the requirements of the Securities Act of 1933, Comcast MO Group, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Philadelphia, State of Pennsylvania, on September 18, 2013.
|
|
|
|
|
COMCAST MO GROUP, INC.
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
|
|
Name:
|
|
Arthur R. Block
|
|
Title:
|
|
Senior Vice President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
R
OBERTS
Brian L. Roberts
|
|
Chairman
(Principal Executive Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Executive Vice President; Director
(Principal Financial Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ D
AVID
L.
C
OHEN
David L. Cohen
|
|
Executive Vice President; Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ A
RTHUR
R.
B
LOCK
Arthur R. Block
|
|
Senior Vice President; Director
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
September 18, 2013
|
II-14
SIGNATURES AND POWER OF ATTORNEY FOR
COMCAST MO OF DELAWARE, LLC
Pursuant to the requirements of the Securities Act of 1933, Comcast MO of Delaware, LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, State of Pennsylvania, on September 18, 2013.
|
|
|
|
|
COMCAST MO OF DELAWARE, LLC
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
|
|
Name:
|
|
Arthur R. Block
|
|
Title:
|
|
Senior Vice President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints Brian L. Roberts, Michael J. Angelakis, David L. Cohen, Lawrence J. Salva and Arthur R. Block and each of them, his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ B
RIAN
L.
R
OBERTS
Brian L. Roberts
|
|
Chairman
(Principal Executive Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ M
ICHAEL
J.
A
NGELAKIS
Michael J. Angelakis
|
|
Executive Vice President
(Principal Financial Officer)
|
|
September 18, 2013
|
|
|
|
|
|
/s/ L
AWRENCE
J.
S
ALVA
Lawrence J. Salva
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
September 18, 2013
|
|
|
|
|
|
|
|
|
|
|
|
|
COMCAST OF GEORGIA/VIRGINIA, INC.
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ A
RTHUR
R.
B
LOCK
Arthur R. Block
Senior Vice President
|
|
Sole Member
|
|
September 18, 2013
|
II-15
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Document
|
|
|
|
|
1.1
|
|
Form of Underwriting Agreement (Debt Securities)*
|
|
|
|
|
1.2
|
|
Form of Underwriting Agreement Standard Provisions (Debt Securities)*
|
|
|
|
|
1.3
|
|
Form of Underwriting Agreement (Preferred Stock, Depositary Shares, Common Stock, Warrants, Purchase Contracts and Units)**
|
|
|
|
|
4.1
|
|
Specimen Class A Common Stock Certificate (incorporated by reference to Comcast’s Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 20,
2003)
|
|
|
|
|
4.2
|
|
Specimen Class A Special Common Stock Certificate (incorporated by reference to Comcast’s Annual Report on Form 10-K for the year ended December 31, 2002, filed on March 20,
2003)
|
|
|
|
|
4.3
|
|
Senior Indenture dated September 18, 2013 among the Company, the guarantors party thereto and The Bank of New York Mellon, as Trustee*
|
|
|
|
|
4.4
|
|
Form of Senior Debt Security*
|
|
|
|
|
4.5
|
|
Form of Purchase Contract Agreement relating to Purchase Contracts**
|
|
|
|
|
4.6
|
|
Form of Unit Agreement**
|
|
|
|
|
4.7
|
|
Form of Warrant Agreement for Warrants sold separately**
|
|
|
|
|
4.8
|
|
Form of Warrant for Warrants sold separately**
|
|
|
|
|
4.9
|
|
Form of Warrant Agreement for Warrants sold attached to other Securities**
|
|
|
|
|
4.10
|
|
Form of Warrant for Warrants sold attached to other Securities**
|
|
|
|
|
4.11
|
|
Form of Pledge Agreement**
|
|
|
|
|
4.12
|
|
Form of Deposit Agreement**
|
|
|
|
|
4.13
|
|
Form of Depositary Share**
|
|
|
|
|
4.14
|
|
Form of Guarantee (Warrants, Purchase Contracts and Units)**
|
|
|
|
|
5.1
|
|
Opinion of Arthur R. Block, Esquire*
|
|
|
|
|
5.2
|
|
Opinion of Davis Polk & Wardwell LLP*
|
|
|
|
|
12.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Dividends of Comcast Corporation (incorporated by
reference to our Annual Report on Form 10-K for the year ended December 31, 2012, filed on February 21, 2013)
|
|
|
|
|
12.2
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Dividends of Comcast Corporation for the six
months ended June 30, 2013*
|
|
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP (Comcast Corporation)*
|
|
|
|
|
23.2
|
|
Consent of Deloitte & Touche LLP (NBCUniversal Media, LLC)*
|
|
|
|
|
23.3
|
|
Consent of KPMG LLP (NBCUniversal Media, LLC)*
|
|
|
|
|
23.4
|
|
Consent of Arthur R. Block, Esquire (included in Exhibit 5.1)
|
|
|
|
|
23.5
|
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.2)
|
|
|
|
|
24.1
|
|
Powers of Attorney (included on the signature pages hereof)
|
|
|
|
|
25.1
|
|
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as Trustee under the Senior Indenture*
|
|
**
|
To be filed by Current Report on Form
8-K.
|
II-16
Exhibit 1.2
COMCAST CORPORATION
UNDERWRITING
AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
SEPTEMBER 18,
2013
From time to time, Comcast Corporation, a Pennsylvania corporation (the
“Company”
), may, alone or together with
NBCUniversal Media, LLC, Comcast Cable Communications, LLC, Comcast Cable Holdings, LLC, Comcast MO Group, Inc. and Comcast MO of Delaware, LLC (collectively, the
“Guarantors”
), enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an
“Underwriting Agreement”
). The
Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as this Agreement. Terms defined in the Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time its senior debt securities (the “
Debt Securities
”), which Debt
Securities may, if so designated, be convertible into the Company’s Class A Common Stock, par value $0.01 per share, or Class A Special Common Stock, par value $0.01 per share. The Debt Securities may be guaranteed (the
“
Guarantees
”) on an unsecured basis by the Guarantors.
The Company and the Guarantors have filed with the
Securities and Exchange Commission (the “
Commission
”) a registration statement including a prospectus relating to the Debt Securities and the Guarantees and have filed with, or transmitted for filing to, or shall promptly after the
date of this Agreement file with or transmit for filing to, the Commission a prospectus supplement (the “
Prospectus Supplement
”) pursuant to Rule 424 under the Securities Act of 1933, as amended (the “
Securities
Ac
t”), specifically relating to the Debt Securities and the Guarantees, if applicable, offered pursuant to this Agreement (the “
Offered Securities
”). The term “
Registration Statement
” means the registration
statement as amended to the date of this Agreement including any additional registration statement filed by the Company pursuant to Rule 462(b). The term “
Base Prospectus
” means the prospectus included in the Registration Statement.
The term “
Prospectus
” means the Base Prospectus together with the Prospectus Supplement. The term “
preliminary prospectus
” means a preliminary prospectus supplement specifically relating to the Offered Securities,
together with the Base Prospectus. The term “
free writing prospectus
” has the meaning set forth in Rule 405 under the Securities Act. The term “
issuer free writing prospectus
” has the meaning set forth in Rule 433
under the Securities Act. The term “
Disclosure Package
” means the Base Prospectus and preliminary prospectus, if any, together with any additional documents or other information identified in Schedule I to this Agreement. As used
herein, the terms “Base Prospectus,” “Prospectus”, “preliminary prospectus” and “Disclosure Package” shall include in each case the
documents, if any, incorporated by reference therein. As used herein, the term “
Applicable Time
” means the time and date at which this Agreement is deemed to be executed or
such other time as agreed in writing by the Company and the Managers. The terms “supplement,” “amendment” and “amend” as used herein shall include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Base Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”). For purposes of this Agreement,
“
Issuers
” means the Company and includes the Guarantors if Guarantees are offered pursuant to this Agreement.
1.
Representations and Warranties.
The Issuers, jointly and severally, represent and warrant to each of the Underwriters as of the Applicable Time that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Each document
filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Disclosure Package or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the rules and regulations of the
Commission thereunder.
(c) The Registration Statement, the Disclosure Package and the Prospectus comply in all material
respects with the Securities Act and the rules and regulations of the Commission thereunder and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing representations and warranties do not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility of the Trustee on Form T-1 (the “
Form
T-1
”) or (ii) statements or omissions in the Registration Statement, the Disclosure Package or the Prospectus or any amendment or supplement thereto based upon information furnished to the Issuers in writing by any Underwriter through
the Managers expressly for use therein.
(d) The Company is not an “ineligible issuer” in connection with the
offering pursuant to Rules 164, 405 and 433 under the Securities Act. The Company has not made, used, prepared, authorized, approved or referred to any offer relating to the Offered Securities that would constitute a free writing prospectus other
than (i) any written communications furnished in advance to the Managers; (ii) an electronic road show, if any, furnished to the Managers before first use; or (iii) free writing prospectuses identified on Schedule I to this Agreement,
including the term sheet as set forth in Schedule II to this Agreement. Any such free writing prospectus as of its issue date complied in all material respects with the requirements of the Securities Act and the rules and regulations thereunder and
was filed with the Commission in accordance with the Securities Act (to the extent required pursuant to Rule 433(d) thereunder).
(e) The execution and delivery by each Issuer of, and the performance by each Issuer of its obligations under, this Agreement,
each indenture under which the Offered Securities are to be issued, and the Offered Securities, will not contravene any provision
2
of applicable law or the articles of incorporation or by-laws of any Issuer or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its consolidated subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or agency is required for the performance by each Issuer of its obligations under this Agreement, each indenture under which the Offered Securities are to be issued or the
Offered Securities, except such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Offered Securities;
provided, however
, that no representation is made as to whether the
purchase of the Offered Securities constitutes a “prohibited transaction” under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended.
(f) Neither the Company nor any of its subsidiaries is (i) in violation of its articles of incorporation or by-laws
(or similar organizational documents) or (ii) in default in the performance or observance of any obligation, covenant or condition contained in any contract, except to the extent such default would not have a material adverse effect.
(g) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Disclosure Package (exclusive of any amendments or supplements thereto effected
subsequent to the date of the Agreement).
(h) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its consolidated subsidiaries is a party or to which any of the properties of the Company or any of its consolidated subsidiaries is subject that are required to be described in the Registration Statement or the
Disclosure Package and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Disclosure Package or to be filed or incorporated by reference as exhibits
to the Registration Statement that are not described, filed or incorporated as required.
(i) Each of the Company and its
consolidated subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Disclosure Package, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole.
2.
Public
Offering.
The Issuers are advised by the Managers that the Underwriters propose to make a public offering of their respective portions of the Offered Securities as soon after this Agreement has been entered into as in the Managers’ judgment
is advisable. The terms of the public offering of the Offered Securities are set forth in the Disclosure Package and the Prospectus.
3
3.
Purchase and Delivery.
Except as otherwise provided in this Section 3, payment for
the Offered Securities shall be made to the Company in Federal or other funds immediately available in New York City at the time and place set forth in this Agreement, upon delivery to the Managers for the respective accounts of the several
Underwriters of the Offered Securities registered in such names and in such denominations as the Managers shall request in writing not less than one full business day prior to the date of delivery, with any transfer taxes payable in connection with
the transfer of the Offered Securities to the Underwriters duly paid.
4.
Conditions to Closing.
The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the Applicable Time and prior to the
Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the
rating accorded any Issuer or any of the securities of any Issuer by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.
(b) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission, and there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of
the Company and its consolidated subsidiaries, taken as a whole, from that set forth in the Disclosure Package, that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the Disclosure Package; and the Managers shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by an executive officer of the Company,
to the foregoing effect. Such certificate shall also provide that the representations and warranties of the Company contained herein are true and correct as of the Closing Date. The officer making such certificate may rely upon the best of his
knowledge as to proceedings threatened.
(c) The Managers shall have received on the Closing Date an opinion of Arthur R.
Block, Esquire, Senior Vice President, General Counsel and Secretary of the Company (or another lawyer of the Company reasonably satisfactory to the Underwriters), dated the Closing Date, to the effect (as applicable) that:
(i) the Company is validly existing as a corporation subsisting under the laws of the Commonwealth of Pennsylvania and is duly
qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (except where the failure to so qualify would not have a material
adverse effect upon the business or financial condition of the Company and its subsidiaries, as a whole);
4
(ii) each indenture under which the Offered Securities are to be issued, has been
duly authorized, executed and delivered by the Company;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) all of the issued shares of capital stock or membership interests, as applicable, of each
Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable (with respect to such shares of capital stock), and (except for directors’ qualifying shares and except as otherwise set forth in the Disclosure
Package) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) the Company has an authorized capitalization as set forth in the Disclosure Package, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(vi)
the Offered Securities to be offered by the Company have been duly authorized by the Company;
(vii) except as rights to
indemnity and contribution under this Agreement may be limited under applicable law, the execution and delivery by each Issuer of, and the performance by each Issuer of its obligations under, each indenture under which the Offered Securities are to
be issued, the Offered Securities and this Agreement will not contravene (A) any provision of the laws of the Commonwealth of Pennsylvania or any federal law of the United States of America that in such counsel’s experience is normally
applicable to general business corporations in relation to transactions of the type contemplated by each indenture under which the Offered Securities are to be issued, the Offered Securities and this Agreement (except with respect to federal, state
or foreign securities laws or to laws relating specifically to the cable communications industry, as to which such counsel is not called upon to express any opinion), (B) the articles of incorporation or bylaws or equivalent organizational
documents of any Issuer, or (C) to the best of such counsel’s knowledge, any material agreement or other material instrument binding upon such Issuer;
(viii) no consent, approval, authorization, or order of, or qualification with any state governmental body or agency under the
laws of the Commonwealth of Pennsylvania, any federal law of the United States of America, or to the best of such counsel’s knowledge, any other state or jurisdiction of the United States, that in such counsel’s experience is normally
applicable to general business corporations in relation to transactions of the type contemplated by each indenture under which the Offered Securities are to be issued, the Offered Securities and this Agreement is required for the performance by any
Issuer of its obligations under each indenture under which the Offered Securities are to be issued, the Offered Securities
5
and this Agreement (except such as may be required under federal, state or foreign securities or Blue Sky laws and with respect to consents, approvals and authorizations relating specifically to
the cable communications industry as to which such counsel is not called upon to express any opinion);
(ix) subject to
such qualification as may be set forth in the Disclosure Package, the Company and its subsidiaries have, and are in material compliance with, such franchises, and to the best knowledge of such counsel after reasonable investigation, such licenses
and authorizations, as are necessary to own their properties and to conduct their business in the manner described in the Disclosure Package, except where the failure to have, or comply with, such franchises, licenses and authorizations would not
have a material adverse effect on the business or financial condition of the Company and its subsidiaries, as a whole, and such franchises, licenses and authorizations contain no materially burdensome restrictions not adequately described in the
Disclosure Package, which restrictions would have a material adverse effect on the business or financial condition of the Company and its subsidiaries, as a whole;
(x) the statements included in (A) Item 3 of the Company’s and NBCUniversal Media, LLC’s most recent Annual
Report on Form 10-K incorporated by reference in the Disclosure Package, (B) Part II, Item 1 under the caption “Legal Proceedings” of the Company’s and NBCUniversal Media, LLC’s most recent Quarterly Report on Form
10-Q, if any, incorporated by reference in the Disclosure Package, (C) the Registration Statement in Item 15 and (D) the Disclosure Package under the caption “Description of Capital Stock,”
1
insofar as such statements summarize the legal matters, documents or proceedings referred to therein, fairly summarize such legal matters, documents and proceedings in all material respects;
(xi) such counsel does not know of any legal or governmental proceeding pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject which is required to be described in the Registration Statement or the Disclosure Package and is not so described or of any contract
or other document which is required to be described in the Registration Statement or the Disclosure Package or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
|
1
|
The inclusion of Section 4(c)(x)(D) is only required for issuances of convertible debt.
|
6
(xii) the securities into which the Offered Securities are convertible, initially
reserved for issuance upon conversion of the Offered Securities (the
“Underlying Securities”
), have been duly authorized and reserved for issuance; and
(xiii) when the Underlying Securities are issued upon conversion of the Offered Securities in accordance with the terms of the
Offered Securities, such Underlying Securities will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or other right to subscribe for or purchase such Underlying Securities.
Such counsel shall also state that nothing has come to his attention that causes him to believe that (1) on the date of this Agreement,
the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (2) at the Applicable Time, the
Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; or (3) that
the Prospectus as of the date of this Agreement or as of the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make statements therein, in the light of the
circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that his belief
is based upon his participation in the preparation of the Registration Statement, Disclosure Package, Prospectus and the documents incorporated therein by reference and review and discussion of the contents thereof, but is without independent check
or verification except as specified. Such counsel need not pass upon or assume responsibility for the accuracy, completeness or fairness of the statements contained in, and need not have checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished in Registration Statement, Disclosure Package, and the Prospectus, except as specified. Such counsel is not called to pass upon, and need express no view regarding, the financial statements or financial
schedules or other financial or accounting data included in the Registration Statement, the Disclosure Package, the Prospectus or the Statement of Eligibility of the Trustee on Form T-1. In addition, such counsel need not express a view as to the
conveyance of the Disclosure Package or the information contained therein to the purchasers of the Offered Securities.
In expressing his
opinion as to questions of the law of jurisdictions other than the Commonwealth of Pennsylvania and the United States, such counsel may rely to the extent reasonable on such counsel as may be reasonably acceptable to counsel to the Underwriters. In
addition, such counsel may reasonably rely as to questions of fact on certificates of responsible officers of the Company.
7
(d) The Managers shall have received on the Closing Date an opinion of Davis
Polk & Wardwell LLP, special counsel for the Company, dated the Closing Date, to the effect that:
(i) each
Guarantor is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware;
(ii) each indenture under which the Offered Securities are to be issued has been duly authorized, executed and delivered by
each Guarantor and, assuming each indenture under which the Offered Securities are to be issued has been duly authorized, executed and delivered by the Company and duly executed and delivered by the respective trustee thereto, each indenture under
which the Offered Securities are to be issued is a valid and binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, concepts of reasonableness and equitable principles of general applicability (except with respect to the (A) enforceability of any waiver of rights under any usury or stay law, and (B) validity, legally binding effect or
enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Offered Securities to the extent determined to constitute unearned interest, as to which such counsel is not called upon
to express any opinion);
(iii) the Guarantees have been duly authorized, and, assuming the Offered Securities have been
authorized by the Company, when the Offered Securities have been duly executed and authenticated in accordance with the provisions of each relevant indenture under which the Offered Securities are to be issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Offered Securities will be valid and binding obligations of the Company and the Guarantees will be valid and binding obligations of the Guarantors, enforceable against them in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability; and will be entitled to the benefits of each relevant indenture
under which the Offered Securities are to be issued (except with respect to the (A) enforceability of any waiver of rights under any usury or stay law, and (B) validity, legally binding effect or enforceability of any provision that
permits holders to collect any portion of stated principal amount upon acceleration of the Offered Securities to the extent determined to constitute unearned interest, as to which such counsel is not called upon to express any opinion);
(iv) this Agreement has been duly authorized, executed and delivered by each Guarantor party hereto;
(v) except as rights to indemnity and contribution under this Agreement may be limited under applicable law, the execution and
delivery by each Issuer of, and the performance by each Issuer of its obligations under each indenture under which the Offered Securities are to be issued, the Offered Securities and this Agreement, will not contravene (A) any provision of laws
of the State of New York or any federal law of the United States of America that in such counsel’s
8
experience is normally applicable to general business corporations in relation to transactions of the type contemplated by each indenture under which the Offered Securities are to be issued, the
Offered Securities and this Agreement (except with respect to federal, state or foreign securities laws or to laws relating specifically to the cable communications industry, as to which such counsel is not called upon to express any opinion), or
(B) the certificate of incorporation or bylaws or equivalent organizational documents of any Guarantor; and
(vi) no
consent, approval, authorization or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in such counsel’s experience is normally
applicable to general business corporations in relation to transactions of the type contemplated by each indenture under which the Offered Securities are to be issued, the Offered Securities and this Agreement (except such as may be required under
federal, state or foreign securities or Blue Sky laws and with respect to consents, approvals and authorizations relating specifically to the cable communications industry, as to which such counsel is not called upon to express any opinion).
Such counsel shall state that they have considered the statements included in the Prospectus Supplement under the caption “Description of
the Notes” and in the Base Prospectus under the caption “Description of Debt Securities and Guarantees” insofar as they summarize provisions of each indenture under which the Offered Securities are to be issued and, the Offered
Securities and that in their opinion such statements fairly summarize these provisions in all material respects. Such counsel shall also state that the statements included in the Prospectus Supplement under the caption “Material U.S. Federal
Income Tax Consequences for Non-U.S. Holders” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, fairly and accurately summarize the matters referred to therein in all
material respects.
Such counsel shall also state that (a) the Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and (b) nothing has come to the attention of such counsel that causes them to
believe that, insofar as relevant to the offering of the Offered Securities, (1) on the date of this Agreement, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (2) at the Applicable Time, the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are made, not misleading; or (3) the Prospectus as of the date of this Agreement or as of the Closing Date contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make statements therein, in the light of the circumstances under which they are made, not misleading.
9
With respect to the preceding paragraph, Davis Polk & Wardwell LLP may state that their
belief is based upon information gained in the performance of their services, but is without independent check or verification except as specified. Such counsel need not pass upon or assume responsibility for the accuracy, completeness or fairness
of statements contained in, and need not have checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in, the Registration Statement, the Disclosure Package and the Prospectus, except as specified. In
addition, such counsel is not called to pass upon, or express any view regarding, the financial statements or financial schedules or other financial or accounting data included in the Registration Statement, the Disclosure Package, the Prospectus or
the Form T-1. Such counsel need not express a view as to the conveyance of the Disclosure Package of the information contained therein to investors.
(e) The Managers shall have received on the Closing Date an opinion of internal communications counsel for the Company, dated
the Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission (the “FCC”) is
required in connection with the issuance and sale of the Offered Securities;
(ii) the execution and delivery of this
Agreement, each indenture under which the Offered Securities are to be issued, by each Issuer, the fulfillment of the terms set forth herein and therein by each Issuer and the consummation of the transactions contemplated hereby and thereby by each
Issuer do not violate any statute, regulation or other law of the United States relating specifically to the cable communications industry (except as otherwise explicitly set forth in the Disclosure Package) or, to the knowledge of such counsel, any
order, judgment or decree of any court or governmental body of the United States relating specifically to the cable communications industry and applicable to such Issuer or any subsidiary, and which violation would have a material adverse effect on
the business or financial condition of such Issuer and its subsidiaries, as a whole;
(iii) the statements in the
Company’s and NBCUniversal Media, LLC’s most recent Annual Report on Form 10-K incorporated by reference in the Registration Statement, the Disclosure Package and Prospectus relating specifically to the cable communications industry,
as updated by the Company’s and NBCUniversal Media, LLC’s most recent Quarterly Reports on Form 10-Q, if any, and Current Reports on Form 8-K, if any, incorporated in the Registration Statement, the Disclosure Package and the Prospectus
and as updated by the Disclosure Package, insofar as they are, or refer to, statements of federal law or legal conclusions, have been reviewed by such counsel and present in all material respects the information called for with respect to such
statements of federal law or legal conclusions; and
(iv) such counsel does not know of any proceeding pending before the
FCC to which the Company or any of its subsidiaries is a party or involving the cable communications properties, licenses or authorizations of the Company
10
and its subsidiaries, or of any cable communications law or regulation relevant thereto required to be described in the Registration Statement or the Disclosure Package pursuant to Regulation S-K
promulgated under the Securities Act, which is not described as required.
(f) The Managers shall have received on the
Closing Date an opinion of Cahill Gordon & Reindel
LLP
, counsel for the Underwriters, dated the Closing Date, covering the matters requested by and in form and substance reasonably satisfactory to the Managers.
(g) The Managers shall have received on the date hereof a letter dated such date and on the Closing Date a letter dated such
date, in each case in form and substance satisfactory to the Managers, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information reviewed by them contained in or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and each
other firm of independent accountants, if any, who audited or reviewed financial statements contained in or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to such financial statements and financial information.
(h) The Managers shall have received on the date hereof or on the Closing Date, as applicable, such additional documents as the
Managers shall have reasonably requested to confirm compliance with the conditions to Closing listed herein.
5.
Covenants of the
Company.
In further consideration of the agreements of the Underwriters herein contained, the Issuers covenant as follows:
(a) To furnish to the Managers, without charge, a copy of the Registration Statement and two signed copies of any
post-effective amendment thereto specifically relating to the Offered Securities (including exhibits thereto and documents incorporated therein by reference) and, during the period mentioned in paragraph (f) below, as many copies of the
Disclosure Package, the Prospectus, any documents incorporated therein by reference and any supplements and amendments thereto as the Managers may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus, to furnish the
Managers a copy of each such proposed amendment or supplement.
(c) Before filing, using or referring to any free writing
prospectus relating to the Offered Securities, to furnish the Managers a copy of each such free writing prospectus.
11
(d) Not to take any action that would result in an Underwriter being required to
file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Disclosure Package is being used to solicit offers to buy the Offered Securities at a time when the Prospectus is
not yet available to prospective purchasers and any event shall occur as a result of which it is necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances existing at the time,
not misleading, or if any event shall occur as a result of which any free writing prospectus included as part of the Disclosure Package conflicts with the information contained in the Registration Statement then on file, the Company shall forthwith
prepare and furnish, at its expense, to the Underwriters and to the dealers (whose names and addresses the Managers will furnish to the Company), either amendments or supplements to the Disclosure Package so that the statements in the Disclosure
Package as so amended or supplemented will not, in the light of the circumstances existing at the time, be misleading or so that any free writing prospectus which is included as part of the Disclosure Package, as amended or supplemented, will no
longer conflict with the Registration Statement.
(f) If, during such period after the first date of the public offering of
the Offered Securities during which in the opinion of counsel to the Managers the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time, not misleading, forthwith to
prepare and furnish, at its expense, to the Underwriters and to the dealers (whose names and addresses the Managers will furnish to the Company) to which Offered Securities may have been sold by the Managers on behalf of the Underwriters and to any
other dealers on request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time, be misleading.
(g) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such U.S.
jurisdictions as the Managers shall reasonably request.
(h) To make generally available to the Company’s security
holders as soon as practicable an earnings statement covering the twelve month period beginning on the first day of the first fiscal quarter commencing after the date hereof, which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder (which may be accomplished by making generally available the Company’s financial statements in the manner provided for by Rule 158 of the Securities Act).
12
6.
Covenants of the Underwriters.
In further consideration of the agreements of the
Issuers herein contained, each Underwriter severally covenants as follows:
(a) Not to take any action that would result in
the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
(b) Not to use, refer to or distribute any free writing prospectus except:
(i) a free writing prospectus that (A) is not an issuer free writing prospectus and (B) contains only information
describing the preliminary terms of the Offered Securities or the offering thereof, which information is limited to the categories of terms referenced on Schedule II to this Agreement or otherwise permitted under Rule 134 of the Securities Act;
(ii) a free writing prospectus as shall be agreed in writing with the Company that is not distributed, used or referred to by
such Underwriter in a manner reasonably designed to lead to its broad unrestricted dissemination (unless the Company consents in writing to such dissemination); or
(iii) a free writing prospectus identified in Schedule I to this Agreement as forming part of the Disclosure Package.
7.
Indemnification and Contribution
. The Issuers, jointly and severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls each Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus, the Disclosure Package (as amended or supplemented), any issuer free writing prospectus as defined under Rule 433(d) under
the Securities Act or the Prospectus (as amended or supplemented), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished to any Issuer in writing by such Underwriter through the Managers expressly for use therein; provided,
however, that the foregoing indemnity with respect to any preliminary prospectus, any issuer free writing prospectus or the Disclosure Package shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Offered Securities, or any person controlling any such Underwriter, if (a) the Issuers have notified such Underwriter that any preliminary prospectus, any issuer free writing prospectus or the Disclosure Package
contains an untrue statement of a material fact or an omission to state a material fact necessary to make the statements therein not misleading, (b) the Issuers provided a copy of any such preliminary prospectus, issuer free writing prospectus
or Disclosure Package (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or a separate free writing prospectus correcting such material misstatement or omission to the contact of the Managers
indicated in the notice provision contained in this Agreement sufficiently in advance of first entering into a contract of sale of Offered Securities with such person (the “
Time of Sale
”) so that such preliminary prospectus, issuer
free writing prospectus or Disclosure Package (as so amended or supplemented but without reference to documents incorporated
13
by reference therein) or separate free writing prospectus could have been conveyed to such person prior to the Applicable Time, and (c) the information contained in any such corrected
preliminary prospectus, issuer free writing prospectus, Disclosure Package or separate free writing prospectus was not conveyed by or on behalf of such Underwriter to such person, if required by law so to have been conveyed, at or prior to the Time
of Sale, and if such corrected preliminary prospectus, issuer free writing prospectus, or Disclosure Package (as so amended or supplemented but without reference to documents incorporated by reference therein) or separate free writing prospectus
would have cured the defect giving rise to such loss, claim, damage or liability.
Each Underwriter severally and not jointly agrees to
indemnify and hold harmless each Issuer, their respective directors and officers who sign the Registration Statement and each person, if any, who controls an Issuer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Issuers to such Underwriter, but only with reference to information relating to such Underwriter furnished to any Issuer in writing by such Underwriter
through the Managers expressly for use in the Registration Statement, any preliminary prospectus, the Disclosure Package, any issuer free writing prospectus, the Prospectus or any amendment or supplement thereto.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (hereinafter called the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the “indemnifying
party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons of the Underwriters, such firm shall be designated in writing by the Managers. In the case
of any such separate firm for the Issuers and such directors, officers and controlling persons of the Issuers, such firm shall be designated in writing by the Issuers. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify, to the extent provided in the two immediately preceding paragraphs, the indemnified
party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any
14
pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph of this Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages or liabilities for which indemnification is provided herein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers on the one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers and the Underwriters shall be deemed to be in the same respective proportions as the net proceeds from the offering (before deducting expenses) received by the Issuers bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The relative fault of the Issuers and the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Underwriters agree that it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by them and distributed to the public were offered to the public exceeds the amount of any damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution
agreement contained in this Section 7 and the representations and warranties of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any
15
investigation made by or on behalf of the Underwriters or any person controlling the Underwriters or by or on behalf of the Issuers, their respective officers or directors or any other person
controlling an Issuer and (iii) acceptance of and payment for any of the Offered Securities.
8.
Termination.
This Agreement
shall be subject to termination in the absolute discretion of the Managers by notice given by the Managers to the Issuers, if (a) after the Applicable Time and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange, the American Stock Exchange, or the Financial Industry Regulatory Authority, (ii) trading of any securities of the Company shall have been suspended on the Nasdaq
Global Select Market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that, in the judgment of the Managers, is material and adverse and (b) in the case of any of the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the judgment of the Managers, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Disclosure Package.
The Issuers will pay and bear all costs and expenses incident to the performance of their obligations under this Agreement, including
(a) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), as originally filed and as amended, the preliminary prospectuses, the Disclosure Package, any free writing prospectus and the
Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the preparation, printing and distribution of this Agreement, each indenture under which the Offered Securities are to be
issued and Blue Sky Memorandum, (c) the delivery of the Offered Securities to the Underwriters, (d) the fees and disbursements of the Issuers’ counsel and accountants, (e) the qualification of the Offered Securities under the
applicable state securities or Blue Sky laws in accordance with Section 5, including filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with any Blue Sky survey and any
legal investment survey, (f) all fees payable to the Financial Industry Regulatory Authority in connection with the review, if any, of the offering of the Securities, (g) any fees charged by rating agencies for rating the Offered
Securities and (h) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with each indenture under which the Offered Securities are to be issued and the Offered Securities. Except
as specifically provided elsewhere herein, the Underwriters will pay all of their own costs and expenses, including without limitation the fees and expenses of their counsel and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Issuers to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any reason the Issuers shall be unable to perform their obligations under this Agreement, the Company will reimburse the Underwriters for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by the Underwriters in connection with this Agreement or the offering contemplated hereunder. This provision shall survive the termination or cancellation of this Agreement.
16
9.
Defaulting Underwriters.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Offered Securities that it has or they have agreed to purchase on such date, and the aggregate amount of Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate amount of the Offered Securities to be purchased on such date, the other Underwriters shall be obligated severally and not jointly in the proportions that the amount of Offered Securities set forth
opposite their respective names bears to the aggregate amount of Offered Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Managers may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the amount of Offered Securities that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such amount of Offered Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate amount of Offered Securities with respect to which such default occurs is more than one-tenth of the aggregate amount of Offered Securities to be purchased on such date, and arrangements satisfactory to
the Managers and the Issuers for the purchase of such Offered Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Issuers. In any such case
either the Managers or the Issuers shall have the right to postpone the Closing Date but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
10.
Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
11.
Applicable Law.
This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12.
Headings.
The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
17
Exhibit 4.3
COMCAST CORPORATION,
Issuer
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK
MELLON,
Trustee
INDENTURE
Dated as of September 18, 2013
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
ARTICLE 1
Definitions
|
|
|
|
|
|
|
Section 1.01.
|
|
Certain Terms Defined; Rules of Construction
|
|
|
1
|
|
|
|
|
ARTICLE 2
Securities
|
|
|
|
|
|
|
Section 2.01.
|
|
Forms Generally
|
|
|
7
|
|
|
Section 2.02.
|
|
Form of Trustee’s Certification of Authentication
|
|
|
7
|
|
|
Section 2.03.
|
|
Amount Unlimited; Issuable in Series
|
|
|
7
|
|
|
Section 2.04.
|
|
Authentication and Delivery of Securities
|
|
|
10
|
|
|
Section 2.05.
|
|
Execution of Securities
|
|
|
11
|
|
|
Section 2.06.
|
|
Certificate of Authentication
|
|
|
11
|
|
|
Section 2.07.
|
|
Denomination and Date of Securities; Payments of Interest
|
|
|
11
|
|
|
Section 2.08.
|
|
Registration, Transfer and Exchange
|
|
|
12
|
|
|
Section 2.09.
|
|
Mutilated, Defaced, Destroyed, Lost and Stolen Securities
|
|
|
13
|
|
|
Section 2.10.
|
|
Cancellation of Securities; Destruction Thereof
|
|
|
14
|
|
|
Section 2.11.
|
|
Temporary Securities
|
|
|
15
|
|
|
Section 2.12.
|
|
Authenticating Agent
|
|
|
15
|
|
|
Section 2.13.
|
|
Global Securities
|
|
|
16
|
|
|
Section 2.14.
|
|
CUSIP Numbers
|
|
|
17
|
|
|
|
|
ARTICLE 3
Covenants of the Issuer and the Guarantors
|
|
|
|
|
|
|
Section 3.01.
|
|
Payment of Principal and Interest
|
|
|
18
|
|
|
Section 3.02.
|
|
Offices for Payments, etc
|
|
|
18
|
|
|
Section 3.03.
|
|
Paying Agents
|
|
|
19
|
|
|
Section 3.04.
|
|
Certificate of the Issuer
|
|
|
19
|
|
|
Section 3.05.
|
|
Reports by the Issuer
|
|
|
20
|
|
|
Section 3.06.
|
|
Limitation on Liens
|
|
|
20
|
|
|
Section 3.07.
|
|
Limitation on Sale and Lease-Back Transactions
|
|
|
21
|
|
|
Section 3.08.
|
|
Existence
|
|
|
21
|
|
|
Section 3.09.
|
|
Certain Definitions
|
|
|
22
|
|
|
|
|
ARTICLE 4
Remedies of the Trustee and Holders on Event of Default
|
|
|
|
|
|
|
Section 4.01.
|
|
Event of Default; Acceleration of Maturity; Waiver of Default
|
|
|
26
|
|
|
Section 4.02.
|
|
Collection of Indebtedness by Trustee; Trustee May Prove Debt
|
|
|
27
|
|
|
Section 4.03.
|
|
Application of Proceeds
|
|
|
30
|
|
i
|
|
|
|
|
|
|
|
|
Section 4.04.
|
|
Suits for Enforcement
|
|
|
30
|
|
|
Section 4.05.
|
|
Restoration of Rights on Abandonment of Proceedings
|
|
|
30
|
|
|
Section 4.06.
|
|
Limitations on Suits by Holder
|
|
|
31
|
|
|
Section 4.07.
|
|
Unconditional Right of Holders to Institute Certain Suits
|
|
|
31
|
|
|
Section 4.08.
|
|
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
|
|
|
31
|
|
|
Section 4.09.
|
|
Control by Holders
|
|
|
32
|
|
|
Section 4.10.
|
|
Waiver of Past Defaults
|
|
|
32
|
|
|
Section 4.11.
|
|
Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
|
|
|
32
|
|
|
Section 4.12.
|
|
Right of Court to Require Filing of Undertaking to Pay Costs
|
|
|
33
|
|
|
|
|
ARTICLE 5
Concerning the Trustee
|
|
|
|
|
|
|
Section 5.01.
|
|
Duties and Responsibilities of the Trustee; During Default; Prior to Default
|
|
|
33
|
|
|
Section 5.02.
|
|
Trustee’s Obligations with Respect to the Covenants
|
|
|
33
|
|
|
Section 5.03.
|
|
Moneys Held by Trustee
|
|
|
34
|
|
|
Section 5.04.
|
|
Reports by the Trustee to Holders
|
|
|
34
|
|
|
Section 5.05.
|
|
Certain Rights of the Trustee
|
|
|
34
|
|
|
Section 5.06.
|
|
Trustee and Agents May Hold Securities; Collections, etc
|
|
|
36
|
|
|
Section 5.07.
|
|
Compensation and Indemnification of Trustee and Its Prior Claim
|
|
|
36
|
|
|
Section 5.08.
|
|
Right of Trustee to Rely on Officer’s Certificate, etc
|
|
|
37
|
|
|
Section 5.09.
|
|
Disqualification; Conflicting Interests
|
|
|
37
|
|
|
Section 5.10.
|
|
Persons Eligible for Appointment as Trustee
|
|
|
37
|
|
|
Section 5.11.
|
|
Resignation and Removal; Appointment of Successor Trustee
|
|
|
37
|
|
|
Section 5.12.
|
|
Acceptance of Appointment by Successor
|
|
|
39
|
|
|
Section 5.13.
|
|
Merger, Conversion, Consolidation or Succession to Business of Trustee
|
|
|
40
|
|
|
Section 5.14.
|
|
Preferential Collection of Claims Against the Issuer
|
|
|
40
|
|
|
Section 5.15.
|
|
Trustee’s Disclaimer
|
|
|
40
|
|
|
|
|
ARTICLE 6
Concerning the Holders
|
|
|
|
|
|
|
Section 6.01.
|
|
Evidence of Action Taken by Holders
|
|
|
40
|
|
|
Section 6.02.
|
|
Proof of Execution of Instruments and of Holding of Securities; Record Date
|
|
|
41
|
|
|
Section 6.03.
|
|
Holders to Be Treated as Owners
|
|
|
41
|
|
|
Section 6.04.
|
|
Securities Owned by Issuer Deemed Not Outstanding
|
|
|
42
|
|
|
Section 6.05.
|
|
Right of Revocation of Action Taken
|
|
|
42
|
|
ii
|
|
|
|
|
|
|
|
|
ARTICLE 7
Amendments, Supplements and Waivers
|
|
|
|
|
|
|
Section 7.01.
|
|
Supplemental Indentures without Consent of Holders
|
|
|
43
|
|
|
Section 7.02.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
44
|
|
|
Section 7.03.
|
|
Execution of Amendments or Supplemental Indentures or Waivers
|
|
|
45
|
|
|
Section 7.04.
|
|
Effect of Amendment, Supplemental Indenture or Waiver
|
|
|
45
|
|
|
Section 7.05.
|
|
Effect of Consent
|
|
|
46
|
|
|
Section 7.06.
|
|
Notation on Securities in Respect of Amendments, Supplemental Indentures or Waivers
|
|
|
46
|
|
|
Section 7.07.
|
|
Conformity with the Trust Indenture Act.
Every amendment, supplemental indenture or waiver executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect
|
|
|
46
|
|
|
|
|
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
|
|
|
|
|
|
|
Section 8.01.
|
|
Consolidation, Merger or Sale of Assets by the Issuer
|
|
|
46
|
|
|
Section 8.02.
|
|
Successor Substituted
|
|
|
47
|
|
|
|
|
ARTICLE 9
Defeasance and Discharge; Unclaimed Moneys
|
|
|
|
|
|
|
Section 9.01.
|
|
Satisfaction and Discharge of Indenture
|
|
|
47
|
|
|
Section 9.02.
|
|
Legal Defeasance
|
|
|
48
|
|
|
Section 9.03.
|
|
Covenant Defeasance
|
|
|
50
|
|
|
Section 9.04.
|
|
Application by Trustee of Funds Deposited for Payment of Securities
|
|
|
50
|
|
|
Section 9.05.
|
|
Repayment of Moneys Held by Paying Agent
|
|
|
51
|
|
|
Section 9.06.
|
|
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
|
|
|
51
|
|
|
|
|
ARTICLE 10
Miscellaneous Provisions
|
|
|
|
|
|
|
Section 10.01.
|
|
Incorporators, Stockholders, Employees, Officers and Directors Exempt from Individual Liability
|
|
|
51
|
|
|
Section 10.02.
|
|
Provisions of Indenture for the Sole Benefit of Parties and Holders
|
|
|
52
|
|
|
Section 10.03.
|
|
Successors and Assigns of Issuer Bound by Indenture
|
|
|
52
|
|
|
Section 10.04.
|
|
Notices and Demands on Issuer, Trustee and Holders
|
|
|
52
|
|
|
Section 10.05.
|
|
Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein
|
|
|
53
|
|
|
Section 10.06.
|
|
Payments Due on Saturdays, Sundays and Holidays
|
|
|
54
|
|
|
Section 10.07.
|
|
Trust Indenture Act
|
|
|
54
|
|
iii
|
|
|
|
|
|
|
|
|
Section 10.08.
|
|
New York Law to Govern; Waiver of Trial by Jury
|
|
|
54
|
|
|
Section 10.09.
|
|
Counterparts
|
|
|
54
|
|
|
Section 10.10.
|
|
Effect of Headings
|
|
|
55
|
|
|
Section 10.11.
|
|
Separability
|
|
|
55
|
|
|
Section 10.12.
|
|
Force Majeure
|
|
|
55
|
|
|
Section 10.13.
|
|
U.S.A. Patriot Act
|
|
|
55
|
|
|
|
|
ARTICLE 11
Redemption of Securities and Sinking Fund Provisions
|
|
|
|
|
|
|
Section 11.01.
|
|
Applicability of Article
|
|
|
55
|
|
|
Section 11.02.
|
|
Notice of Redemption; Partial Redemptions
|
|
|
55
|
|
|
Section 11.03.
|
|
Payment of Securities Called for Redemption
|
|
|
57
|
|
|
Section 11.04.
|
|
Exclusion of Certain Securities from Eligibility for Selection for Redemption
|
|
|
57
|
|
|
|
|
ARTICLE 12
Guarantees
|
|
|
|
|
|
|
Section 12.01.
|
|
The Guarantees
|
|
|
58
|
|
|
Section 12.02.
|
|
Guarantees Unconditional
|
|
|
58
|
|
|
Section 12.03.
|
|
Discharge; Reinstatement
|
|
|
59
|
|
|
Section 12.04.
|
|
Waiver by the Guarantors
|
|
|
59
|
|
|
Section 12.05.
|
|
Subrogation and Contribution
|
|
|
59
|
|
|
Section 12.06.
|
|
Stay of Acceleration
|
|
|
59
|
|
|
Section 12.07.
|
|
Limitation on Amount of Guarantees
|
|
|
59
|
|
|
Section 12.08.
|
|
Execution and Delivery of Guarantees
|
|
|
59
|
|
|
Section 12.09.
|
|
Release of Guarantees
|
|
|
60
|
|
iv
THIS INDENTURE, dated as of September 18, 2013 among Comcast Corporation, a Pennsylvania corporation (the
“
Issuer
” as more fully set forth in Section 1.01), the Guarantors party hereto and The Bank of New York Mellon (the “
Trustee
”),
WITNESSETH:
WHEREAS, for
its lawful corporate purposes, the Issuer has duly authorized the execution and delivery of the Indenture to provide for the issuance of unsecured debt securities 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 the Indenture and to provide, among other things, for the authentication, delivery and administration thereof;
WHEREAS, for its lawful corporate purposes, the Guarantors party hereto have duly authorized the execution and delivery of the Indenture as
guarantors of the Securities, and each Guarantor has done all things necessary to make the Guarantees the valid obligations of such Guarantors as hereinafter provided;
WHEREAS, all things necessary to make the Indenture a valid indenture and agreement according to its terms have been done;
WHEREAS, the Indenture is subject to, and will be governed by, the provisions of the Trust Indenture Act that are required to be a part of and
govern indentures qualified under the Trust Indenture Act; and
NOW, THEREFORE, in consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1
D
EFINITIONS
Section 1.01.
Certain Terms Defined; Rules of Construction.
The following terms (except as otherwise expressly provided or unless
the context otherwise clearly requires) for all purposes of the Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in the Indenture that are defined in the Trust
Indenture Act, or the definitions of which 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 clearly
requires), shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of the Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles, and the term “
generally accepted accounting principles
” means such accounting principles as are generally accepted at the time of any computation. The words
“
herein
”, “
hereof
” and “
hereunder
” and other words of similar import refer to the 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.
Except as otherwise expressly provided or unless the context otherwise clearly requires, references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time
to time (or to successor statutes and regulations).
“
Agent Member
”
means a member of, or a participant in,
the Depositary.
“
Aggregate Debt
” has the meaning assigned to such term in Section 3.09.
“
Attributable Liens
” has the meaning assigned to such term in Section 3.09.
“
Authenticating Agent
” means an authenticating agent with respect to any of the series of Securities appointed with respect
to all or any series of the Securities by the Trustee pursuant to Section 2.12.
“
Bankruptcy Law
” means Title 11 of the
United States Code or any similar Federal or State law for the relief of debtors.
“
Board of Directors
” means either the
Board of Directors of the Issuer or any committee of such Board duly authorized to act hereunder.
“
Business Day
” means,
with respect to any Security, a day that in the Borough of Manhattan, City of New York is not a day on which banking institutions are authorized by law or regulation to close.
“
Capital Lease
” has the meaning assigned to such term in Section 3.09.
“
Commission
” means the United States 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 the 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.
“
company
” means a corporation or a limited liability company.
“
Consolidated Net Worth
” has the meaning assigned to such term in Section 3.09.
“
Corporate Trust Office
” means the principal office of the Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 101 Barclay Street, Floor 8 West, New York, New York 10286, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the
Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
2
“
Depositary
” means, with respect to Securities of any series, for which
the Issuer shall determine that such Securities will be issued as a Global Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by the Issuer pursuant to either Section 2.03 or Section 2.13.
“
Event of Default
” has the meaning assigned to such term in Section 4.01.
“
Exchange Act
” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time
to time, and the rules and regulations of the Commission promulgated thereunder.
“
GAAP
” has the meaning assigned to such
term in Section 3.09.
“
Global Security
” means, with respect to any series of Securities, a Security executed by the
Issuer and delivered by the Trustee to the Depositary or pursuant to a safekeeping agreement with the Depositary, all in accordance with the Indenture, which shall be registered in global form without interest coupons in the name of the Depositary
or its nominee.
“
Governmental Obligations
” means securities that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt;
provided
,
however
, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“
Guarantee
” means the guarantee of the Securities by a Guarantor pursuant to this Indenture.
“
Guarantor
” means each of NBCUniversal Media, LLC, Comcast Cable Communications, LLC, Comcast Cable Holdings, LLC, Comcast MO
Group, Inc. and Comcast MO of Delaware, LLC, in each case excluding such entities’ Subsidiaries, unless and until such Guarantor is released from its Guarantee pursuant to this Indenture.
“
Hedging Obligations
” has the meaning assigned to such term in Section 3.09.
“
Holder
” means the registered holder of any Security.
3
“
Indebtedness
” has the meaning assigned to such term in Section 3.09.
“
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.
“Interest Payment Date”
, when used with respect to any installment of interest on a Security of a particular series, means
the date specified in such Security or in a Resolution of the Board of Directors or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is
due and payable.
“
Issue Date
” means the date on which any series of Securities are originally issued.
“
Issuer
” means, unless otherwise explicitly provided herein, the Person named as the “Issuer” in the first
paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Issuer
” shall mean such successor Person, in each case excluding the Subsidiaries
of any such Person.
“
Issuer Order
” has the meaning assigned to such term in Section 2.04.
“
Lien
” has the meaning assigned to such term in Section 3.09.
“
Notice of Default
” has the meaning assigned to such term in Section 4.01(c).
“
Obligor
” means each of the Issuer and each Guarantor.
“
Officer’s Certificate
” means a certificate signed on behalf of the Issuer by its chairman of the Board of
Directors, chief executive officer, chief financial officer, principal accounting officer, treasurer or president, or by any vice president, controller, secretary, any assistant secretary or general counsel of the Issuer.
“
Opinion of Counsel
” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the
Issuer and who is reasonably acceptable to the Trustee.
“
Original Issue Discount
Security” means any
Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
4
“
Outstanding
”, when used with reference to Securities, shall, subject to
the provisions of Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under the Indenture, except:
(a) Securities 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, if permitted hereby, Governmental Obligations in the
necessary amount to pay all amounts then due 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 provision
satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 unless and until the Trustee and the Issuer receive proof satisfactory to them that the substituted Security is held by a
bona
fide
purchaser.
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, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01 and (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units will be the U.S. dollar equivalent, determined in accordance with the terms of such Security, on the Issue Date of such Security, of the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent of such Security of the amount determined as provided in clause (i) above) of such Security.
“
Permitted Liens
” has the meaning assigned to such term in Section 3.09.
“
Person
” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, or any other entity, including any 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”.
“
Property
” has the meaning assigned to such term in Section 3.09.
“
record date
” has the meaning assigned to such term in Section 2.07.
“
Register
” has the meaning assigned to it in Section 2.08.
“
Registrar
” means a Person engaged to maintain the Register.
5
“Resolution of the Board of Directors”
means a copy of a resolution certified by
the secretary, an assistant secretary or another officer of the Issuer to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“
Responsible Officer
” when used with respect to the Trustee means any officer of the Trustee within the Corporate
Trust Office of the Trustee with direct responsibility for the administration of the Indenture and also, with respect to a particular matter, any other officer of the Trustee to whom such matter is referred because of such officer’s knowledge
and familiarity with the particular subject.
“Securities Act
” means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
“
Security
” or “
Securities
” has the meaning assigned to such term in the first recital of the
Indenture, or, as the case may be, Securities that have been authenticated and delivered under the Indenture.
“
Specified
Non-Recourse Debt
” has the meaning assigned to such term in Section 3.09.
“
Subsidiary
” has the meaning assigned
to such term in Section 3.09.
“
Surviving Entity
” has the meaning assigned to such term in Section 8.01.
“
Trustee
” means the Person identified as “Trustee” in the first paragraph hereof and any successor trustee
under the Indenture pursuant to Article 5 and thereafter “Trustee” will 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 will mean the Trustee with respect to Securities of that series.
“
Trust Indenture
Act
” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;
provided
,
however
, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“U.S.A. Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended, and signed into law October 26, 2001.
“
vice
president
” when used with respect to the Issuer, means any vice president, whether or not designated by a number or a word or words added before or after the title of “vice president”.
“
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.
6
ARTICLE 2
S
ECURITIES
Section 2.01.
Forms Generally.
The Securities of each series shall be substantially in such form (not inconsistent with the
Indenture) as shall be established by or pursuant to a Resolution of the Board of Directors and set forth in an Officer’s Certificate, 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 the Indenture and may have imprinted or otherwise reproduced thereon such legends, notations or endorsements 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 officer executing such Securities, as evidenced by such officer’s execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officer executing such Securities, as evidenced by such officer’s execution of such Securities.
Section 2.02.
Form of Trustee’s Certification of Authentication.
The Trustee’s certificate of authentication on
all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
|
|
|
|
|
THE BANK OF NEW YORK MELLON,
as
Trustee
|
|
|
|
|
by:
|
|
|
|
|
|
Authorized Signatory
|
Section 2.03.
Amount Unlimited; Issuable in Series.
Subject to compliance with this
Section 2.03, the aggregate principal amount of Securities which may be authenticated and delivered under the Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Resolution of the Board of Directors and
set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series including CUSIP numbers, if available (which shall distinguish the Securities of the series from
all other Securities);
7
(b) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under the Indenture (except for Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, Section 2.09,
Section 2.11 or Section 11.03);
(c) the date or dates on which the principal of the Securities of the series is payable;
(d) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be determined,
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable on such Interest Payment Dates;
(e) the right, if any, to extend the interest payment periods and the duration of such extension;
(f) the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in
Section 3.02);
(g) the price or prices at which, the period or periods within which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of the Issuer;
(h) the obligation, if any, of the Issuer to
redeem, purchase or repay Securities of the series at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $2,000 and any multiple of
$1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;
(j) 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 pursuant
to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) whether the Securities are issuable under an exemption
under the Securities Act and, in such case, any provisions unique to such form of issuance including any transfer restrictions or exchange and registration rights;
(l) any and all other terms of the series (which terms shall not be inconsistent with the provisions of the Indenture) including any terms
which may be required by or advisable under U.S. law or regulations or advisable in connection with the marketing of Securities in that series;
8
(m) whether the Securities are issuable as a Global Security and, in such case, the identity of
the Depositary for such series;
(n) any deletion from, modification of or addition to the Events of Default or covenants provided for
with respect to the Securities of the series;
(o) any provisions granting special rights to Holders when a specified event occurs;
(p) 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 (within the meaning of Regulation S under the Securities Act) 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;
(q) any special tax implications of the Securities, including provisions for Original Issue Discount
Securities;
(r) any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the
Securities of such series;
(s) any guarantor or co-issuer of the Securities of the series;
(t) any special interest premium or other premium;
(u) whether the Securities are convertible or exchangeable into common stock or other equity securities of the Issuer or a combination thereof
and the terms and conditions upon which such conversion or exchange shall be effected; and
(v) the currency in which payments shall be
made, if other than U.S. dollars.
All Securities of any one series shall be substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to such Resolution of the Board of Directors and set forth in an Officer’s Certificate, or in any indenture supplemental hereto. The Issuer may, without the consent of the Holders, increase the
principal amount of the Securities of any series by issuing additional Securities of the same series in the future on the same terms and conditions as the Securities of such series, except for any differences in the issue price and, if applicable,
the initial interest accrual date and interest payment date; provided that the additional Securities are fungible with the Securities of such series for U.S. federal income tax purposes. The additional Securities will have the same CUSIP number as
the Securities of the applicable series. Under the Indenture, the Securities of any series and any additional Securities of such series the Issuer may issue in the future will be treated as a single series for all purposes under the Indenture,
including for purposes of determining whether the required percentage of the Holders of record of the Securities of such series has given approval or consent to an amendment or waiver or joined in directing the Trustee to take certain actions on
behalf of all Holders of the Securities of such series.
9
There shall be established in or pursuant to a Resolution of the Board of Directors and set forth
in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of any additional Securities of any series:
(i) the aggregate principal amount of such additional Securities to be authenticated and delivered pursuant to the Indenture;
(ii) the issue price, the issue date and the CUSIP number, if any, of such additional Securities and, to the extent
applicable, the date from which interest shall accrue on, and the initial Interest Payment Date for, such additional Securities; and
(iii) whether such additional Securities shall be transfer restricted Securities or have any registration or exchange rights.
Section 2.04.
Authentication and Delivery of Securities.
At any time and from time to time after the execution and
delivery of the Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, together with a written order of the Issuer, signed in the name of the Issuer by any one of the following officers:
chairman of the Board of Directors, chief executive officer, chief financial officer, principal accounting officer, treasurer, president, any vice president, secretary, controller or general
counsel
1
of the Issuer (an “
Issuer Order
”). The Trustee, in accordance with such written order, shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional responsibilities under the Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a copy of any
Resolution or Resolutions of the Board of Directors, certified by the secretary or an assistant secretary of the Issuer, authorizing such series;
(b) an executed supplemental indenture, if any;
(c) in lieu of a supplemental indenture, an Officer’s Certificate setting forth the form and terms of the Securities as required pursuant
to Section 2.01 and Section 2.03, respectively, and prepared in accordance with Section 10.05; and
(d) an Opinion of
Counsel, prepared in accordance with Section 10.05, to the effect that
(i) the form or forms and terms of such
Securities have been established by or pursuant to a Resolution of the Board of Directors and set forth in an Officer’s Certificate, or by a supplemental indenture as permitted by Section 2.01 and Section 2.03 in conformity with the
provisions of the Indenture; and
|
1
|
NTD: to be confirmed with company; to conform the definition of Officer’s Certificate and § 2.05.
|
10
(ii) such Securities, when authenticated and delivered by the Trustee and issued
by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture, and enforceable against the Issuer in accordance
with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors’ rights generally, and
general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
The Trustee shall
have the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of
directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability.
Section 2.05.
Execution of Securities.
The Securities shall be signed in the name of the Issuer by any one of its chairman
of the Board of Directors, chief executive officer, chief financial officer, principal accounting officer, treasurer, president, vice presidents or general counsel. Such signature may be the manual or facsimile signature of the present or any future
such officer. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such person as, at the actual date of the execution of such Security, shall be the proper officer of the Issuer, although at the date of the execution and delivery of the Indenture
any such person was not such an officer.
Section 2.06.
Certificate of Authentication.
Only such Securities as shall
bear thereon a certificate of authentication substantially in the form recited herein, executed by the Trustee by the manual signature of one of its authorized signatories, shall be entitled to the benefits of the Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the
benefits of the Indenture.
Section 2.07.
Denomination and Date of Securities; Payments of Interest
. The Securities
shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $2,000 in principal amount and multiples of $1,000 in
11
excess thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officer of the Issuer executing the same may determine
with the approval of the Trustee as evidenced by the execution and authentication thereof.
The principal of and the interest on the
Securities of any series shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and private debt, at the office or agency of the Issuer maintained for that purpose.
Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in
each case, established as contemplated by Section 2.03.
Except as otherwise provided pursuant to Section 2.03, the
Person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any Interest Payment Date for such series shall be entitled to receive the interest, if any,
payable on such Interest Payment Date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such Interest Payment Date, except if and to the extent the Issuer shall default in the payment of the
interest due on such Interest Payment Date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders not less than 15 days preceding such subsequent record date.
The term “
record date
” as used with respect to any Interest Payment Date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such Interest Payment Date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
Section 2.08.
Registration, Transfer and
Exchange.
The Issuer may appoint one or more Registrars;
provided
that there shall not be more than one Registrar at any given time. The Issuer initially appoints the Trustee as Registrar. The Issuer will keep or cause to be kept at one
of the offices or agencies to be maintained for the purpose as provided in Section 3.02 a register (the “
Register
”) in which, subject to such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. The 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 the
Register shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities
of the same series in authorized denominations for a like aggregate principal amount.
12
Any Security or Securities of any series may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as provided in
Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Holder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously Outstanding.
All Securities presented for registration of transfer, exchange, redemption or payment shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing, together with signature guarantees for such Holder or attorney.
The Issuer or the Trustee 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.
Neither the Issuer nor the Trustee shall 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 except, in the case of any Security where public notice has been
given that such Security is to be redeemed in part, the portion thereof not so to be redeemed.
In addition to the transfer requirements
provided in this Section 2.08, any Security or Securities will be subject to such further transfer restrictions as may be contained in an Officer’s Certificate or indenture supplemental hereto applicable to such series of Securities.
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under the Indenture, as the Securities surrendered upon such transfer or exchange.
Section 2.09.
Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall
become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the receipt of an Issuer Order, the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security 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 and of the ownership thereof.
13
Upon the issuance of any substitute Security, the Issuer or the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security, which has matured or is
about to mature or has been called for redemption in full or has otherwise become or is about to become due and payable, shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay
or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or 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 and of the ownership thereof.
Every substitute Security of any
series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) the Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10.
Cancellation of Securities; Destruction
Thereof.
All Securities surrendered for payment, redemption, cancellation, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer
or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of the
Indenture. On written request of the Issuer at the time of such surrender, the Trustee shall deliver to the Issuer the Securities cancelled by the Trustee. In the absence of such request, the Trustee shall dispose of cancelled Securities held by it
in accordance with its customary procedures and deliver a certificate of disposition to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented
by such Securities unless and until the same are delivered to the Trustee for cancellation.
14
Section 2.11.
Temporary Securities.
Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall, upon receipt of an Issuer Order, authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such
omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of the Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable
delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.02, and the Trustee shall, upon receipt of an Issuer Order, authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of
the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under the Indenture as definitive Securities of such series.
Section 2.12.
Authenticating Agent
. So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon
exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of the Indenture and shall be valid and binding for all purposes as if authenticated by the Trustee hereunder. All references in the
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Issuer and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision or examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign
immediately. Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Issuer. The Trustee may at any time (and upon written request by the Issuer shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Issuer. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
15
Section 2.13.
Global Securities.
(a) If the Issuer shall establish
pursuant to Section 2.03 that the Securities of a particular series are to be issued as a Global Security, then the Issuer shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that shall (i) represent, and be issued in a denomination or aggregate denominations equal to the aggregate principal amount of all the Securities to be represented by a Global Security, (ii) be registered in the name of the Depositary or
its nominee, (iii) be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.13 of the
Indenture, this Security may be transferred, in whole but not in part, only to the Depositary, to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
Notwithstanding the provisions of Section 2.08, the Global Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.08, only to the Depositary for such series, to another nominee of the Depositary for such series or to a successor Depositary for such series selected or approved by the Issuer or to a nominee of such successor
Depositary.
Ownership of beneficial interests in a registered Global Security will be limited to Agent Members that have accounts with
the Depositary or Persons that may hold interests through Agent Members. Upon the issuance of a registered Global Security, the Depositary will credit, on its book-entry registration and transfer system, the Agent Members’ accounts with the
respective principal or face amounts of the Securities beneficially owned by the Agent Members. Any dealers, underwriters, initial purchasers or agents participating in the distribution of the Securities will designate the accounts to be credited.
Ownership of beneficial interests in a registered Global Security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the Depositary, with respect to interests of Agent Members, and on the
records of Agent Members, with respect to interests of Persons holding through Agent Members.
So long as the Depositary, or its nominee,
is the registered owner of a registered Global Security, that Depositary or its nominee, as the case may be, will be considered the sole owner or Holder of the Securities represented by the registered Global Security for all purposes under the
Indenture. Except as described in this Section 2.13, owners of beneficial interests in a registered Global Security will not be entitled to have the Securities represented by the registered Global Security registered in their names, will not
receive or be entitled to receive physical delivery of the Securities in definitive form and will not be considered the owners or Holders of the Securities under the Indenture. Accordingly, each Person owning a beneficial interest in a registered
Global Security must rely on the procedures of the Depositary for that registered Global Security and, if that Person is not an Agent Member, on the procedures of the Agent Member through which the Person owns its interest, to exercise any rights of
a Holder under the Indenture. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Security through
an Agent Member) to take any action which a Holder is entitled to take under the Indenture or the Securities, and nothing herein will impair, as between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
16
Principal and interest payments on Securities represented by a Global Security registered in the
name of the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the registered Global Security. None of the Issuer, the Trustee or any other agent of the Issuer, or any agent of the
Trustee will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered Global Security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
(b) If at any time the Depositary for a series of the Securities notifies the Issuer
that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition, as the case may be, Section 2.13(a) shall no longer be applicable to the Securities of
such series and the Issuer will execute, and subject to Section 2.08, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Issuer may, subject to the procedures of the Depositary, at any time determine that the Securities of any
series shall no longer be represented by a Global Security and that the provisions of Section 2.13(a) shall no longer apply to the Securities of such series. In such event the Issuer will execute and subject to Section 2.08, the Trustee,
upon receipt of an Officer’s Certificate evidencing such determination by the Issuer, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be cancelled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.13(b) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect Agent Members or otherwise, shall instruct the Trustee in writing. The Issuer and the Trustee shall be entitled to conclusively rely on such
instructions from the Depositary and shall incur no liability to any Person for any losses or damages arising as a result of any delay in receiving such instructions. The Trustee shall deliver such Securities to the Depositary for delivery to the
Persons in whose names such Securities are so registered.
Section 2.14.
CUSIP Numbers
. The Issuer in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
17
reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer
will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE 3
C
OVENANTS
OF
THE
I
SSUER
AND
THE
G
UARANTORS
Section 3.01.
Payment of Principal and Interest.
(a) The Issuer covenants and agrees
for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series at the place or places, at the respective times and in the manner provided
in such Securities. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal on each series of Securities at the rate specified therefor in the terms of such series of
Securities to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent
lawful. Unless otherwise provided in the Securities of any series, not later than 11:00 A.M. (New York City time) on the due date of any principal of or interest on any Securities, the Issuer will deposit with the paying agent moneys in immediately
available funds sufficient to pay such amounts, provided that if the Issuer or any affiliate of the Issuer is acting as paying agent, it will, on or before each due date, segregate and hold in a separate trust fund for the benefit of the Holders a
sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in the Indenture. In each case, unless the paying agent is the Trustee, the Issuer will promptly notify the Trustee of its compliance with
this paragraph or any failure to take an action as required by this paragraph.
(b) An installment of principal or interest will be
considered paid on the date due if the Trustee (or paying agent, other than the Issuer or any affiliate of the Issuer) holds on that date money designated for and sufficient to pay the installment. If the Issuer or any affiliate of the Issuer acts
as paying agent, an installment of principal or interest will be considered paid on the due date only if paid to the Holders.
(c)
Payments in respect of the Securities represented by a Global Security are to be made by wire transfer of immediately available funds to the accounts specified by the Holder of such Global Security. Except as otherwise provided pursuant to
Section 2.03, with respect to any certificated Security, the Issuer will make all payments by wire transfer of immediately available funds to the account specified by the Holder thereof to the paying agent at least five Business Days prior to
the applicable date for such payment or, if no such account is specified, by mailing a check to such Holder’s registered address, subject to surrender of such Security, except in the case of payments of interest on any Interest Payment Date.
Section 3.02.
Offices for Payments, etc.
So long as any of the Securities remain Outstanding, the Issuer will maintain
in New York City, N.Y., the following for each series: an office or agency (a) where the Securities may be presented for payment,
18
(b) where the Securities may be presented for registration of transfer and for exchange as in the Indenture provided and (c) where notices and demands to or upon the Issuer in respect
of the Securities or of the Indenture may be given or served. The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with
Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of the Trustee as the agency to be maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the applicable Corporate Trust Office of the Trustee and the Issuer hereby appoints the
Trustee as its agent to receive all such presentations, notices and demands.
Section 3.03.
Paying Agents.
Whenever the
Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or
interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable,
(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 Section 3.03(b) above, and
(d) that it will perform all other duties of paying agent as set forth in the Indenture.
Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this section is subject to the provisions of Section 9.05 and Section 9.06.
Section 3.04.
Certificate of the Issuer.
The Issuer will furnish to the Trustee on or before 120 days after the end of each fiscal
year (beginning with the fiscal year ended December 31, 2013) a brief certificate (which need not comply with Section 10.05)
19
from the principal executive, financial or accounting officer or the treasurer of the Issuer as to his or her knowledge of the Issuer’s compliance, performance and observance with all
conditions and covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under the Indenture), or if there has been a default, specifying the default and its nature and
status.
Section 3.05.
Reports by the Issuer.
The Issuer will furnish to the Trustee any document or report the Issuer
is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act within 15 days after such document or report is filed with the Commission; provided that in each case the delivery of materials to the
Trustee by electronic means or filing documents pursuant to the Commission’s “EDGAR” system (or any successor electronic filing system) shall be deemed to constitute “filing” with the Trustee for purposes of this
Section 3.05. Delivery of the reports, information and documents required by this section to be delivered to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein.
Section 3.06.
Limitation on Liens
.
(a) With respect to the Securities of each series, each Obligor covenants not to create or incur any Lien on any of its Properties,
whether now owned or hereafter acquired, in order to secure any of its Indebtedness, without effectively providing that the Securities of such series shall be equally and ratably secured until such time as such Indebtedness is no longer secured by
such Lien, except
:
(i) Liens existing as of the date of initial issuance of the Securities of such series;
(ii) Liens granted after the date of initial issuance of the Securities of such series, created in favor of the Holders of the
Securities of such series;
(iii) Liens securing such Obligor’s Indebtedness which are incurred to extend, renew or
refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.06(a), so long as such Liens are limited to all or part of substantially the same Property which secured the Liens extended, renewed or replaced and
the amount of Indebtedness secured is not increased (other than by the amount equal to any costs and expenses (including any premiums, fees or penalties) incurred in connection with any extension, renewal or refinancing); and
(iv) Permitted Liens.
(b) Notwithstanding Section 3.06(a), any Obligor may, without securing the Securities of any series, create or incur Liens which would
otherwise be subject to the restrictions set forth in Section 3.06(a), if after giving effect thereto, its Aggregate Debt together with the Aggregate Debt of each other Obligor does not exceed the greater of (i) 15% of the Issuer’s
Consolidated Net Worth calculated as of the date of the creation or
20
incurrence of the Lien and (ii) 15% of the Issuer’s Consolidated Net Worth calculated as of the date of initial issuance of the Securities of such series; provided that Liens created or
incurred pursuant to this Section 3.06(b) may be extended, renewed or replaced so long as the amount of Indebtedness secured by such Liens is not increased (other than by the amount equal to any costs and expenses (including any premiums, fees
or penalties) incurred in connection therewith) and such refinancing Indebtedness, if then outstanding, is included in subsequent calculations of Aggregate Debt of such Obligor.
Section 3.07.
Limitation on Sale and Lease-Back Transactions
.
(a) With respect to the Securities of each series, each Obligor covenants not to enter into any sale and lease-back transaction for the sale
and leasing back of any Property, whether now owned or hereafter acquired, unless:
(i) such transaction was entered into
prior to the date of the initial issuance of the Securities of such series;
(ii) such transaction was for the sale and
leasing back to such Obligor of any Property by one of its Subsidiaries;
(iii) such transaction involves a lease for less
than three years;
(iv) such Obligor would be entitled to incur Indebtedness secured by a mortgage on the Property to be
leased in an amount equal to the Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Securities of such series pursuant to Section 3.06(a) above; or
(v) such Obligor applies an amount equal to the fair value of the Property sold to the purchase of Property or to the
retirement of its long-term Indebtedness within 365 days of the effective date of any such sale and lease-back transaction. In lieu of applying such amount to such retirement, such Obligor (or the Issuer) may deliver Securities to the Trustee
therefor for cancellation, such Securities to be credited at the cost thereof to the Obligor.
(b) Notwithstanding Section 3.07(a),
any Obligor may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions with respect to the Securities of any series if after giving effect thereto and at the time of determination, its Aggregate
Debt together with the Aggregate Debt of all other Obligors does not exceed the greater of (i) 15% of the Issuer’s Consolidated Net Worth calculated as of the closing date of the sale and lease-back transaction and (ii) 15% of the
Issuer’s Consolidated Net Worth calculated as of the date of initial issuance of the Securities of such series.
Section 3.08.
Existence
. Except as permitted under Article 8, the Issuer covenants to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights and franchises;
provided
,
however
, that the
Issuer shall not be required to preserve any right or franchise if it determines that its preservation is no longer desirable in the conduct of its business.
21
Section 3.09.
Certain Definitions
. As used in Sections 3.06 and 3.07 and this
Section 3.09, the following terms have the meanings set forth below.
“
Aggregate Debt
” means, with respect to
an Obligor, the sum of the following as of the date of determination:
(1) the aggregate principal amount of such Obligor’s
Indebtedness incurred after the date of initial issuance of the Securities and secured by Liens not permitted by the first sentence under Section 3.06(a), and
(2) such Obligor’s Attributable Liens in respect of sale and lease-back transactions entered into after the date of the initial issuance
of the Securities pursuant to Section 3.07(b).
“
Attributable Liens
” means in connection with a sale and lease-back
transaction of an Obligor the lesser of:
(1) the fair market value of the assets subject to such transaction (as determined in good faith
by the Board of Directors (in the case of the Issuer) or the equivalent governing body (in the case of any Guarantor)); and
(2) the
present value (discounted at a rate per annum equal to the average interest borne by all Outstanding Securities of each series issued under the Indenture determined on a weighted average basis and compounded semi-annually) of the obligations of the
lessee for rental payments during the term of the related lease.
“
Capital Lease
” means any Indebtedness
represented by a lease obligation of a Person incurred with respect to real property or equipment acquired or leased by such Person and used in its business that would be required to be recorded as a capital lease in accordance with GAAP as in
effect as of the date of this Indenture, whether entered into before or after the date of this Indenture.
“
Consolidated Net Worth
” of any Person means, as of any date of determination, the stockholders’ equity or
members’ capital of such Person as reflected on the most recent consolidated balance sheet of such Person and prepared in accordance with GAAP.
“
GAAP
” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect in the United States as of (i) the date of this Indenture, for purposes of the definition of “Capital Lease” and (ii) the date of determination, for all other purposes under this
Indenture.
22
“
Hedging Obligations
” means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest
rate cap agreements, interest rate lock agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to
manage interest rates or interest rate risk;
(3) other agreements or arrangements designed to protect such Person against fluctuations in
currency exchange rates or commodity prices; and
(4) other agreements or arrangements designed to protect such Person against
fluctuations in equity prices.
“
Indebtedness
” of any specified Person means, without duplication, any
indebtedness in respect of borrowed money or that is evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements with respect thereto) or representing the balance deferred and unpaid of the purchase
price of any Property (including pursuant to Capital Leases), except any such balance that constitutes an accrued expense, trade payable or other payable in the ordinary course, if and to the extent any of the foregoing indebtedness would appear as
a liability upon an unconsolidated balance sheet of such Person (but does not include contingent liabilities which appear only in a footnote to a balance sheet).
“
Lien
” means any lien, security interest, charge or encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
“
Permitted
Liens
” means, with respect to an Obligor:
(1) Liens on any of the applicable Obligor’s assets, created solely to secure
obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 24 months after completion of such refurbishment, improvement or construction, and all renewals,
extensions, refinancings, replacements or refundings of such obligations;
(2)(a) Liens given to secure the payment of the purchase price
incurred in connection with the acquisition (including acquisition through merger or consolidation) of Property (including shares of stock), including Capital Lease transactions in connection with any such acquisition; provided that with respect to
this clause (a) the Liens shall be given within 24 months after such acquisition and shall attach solely to the Property acquired or purchased and any improvements then or thereafter placed thereon, (b) Liens existing on Property at the
time of acquisition thereof or at the time of acquisition by such Obligor of any Person then owning such Property whether or not such existing Liens were given to secure the payment of the purchase price of the Property to which they attach and
(c) all renewals, extensions, refinancings, replacements or refundings of such obligations under this clause (2);
23
(3) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(4) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on such Obligor’s books in conformity with GAAP;
(5) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other Property relating to such
letters of credit and the products and proceeds thereof;
(6) Liens encumbering customary initial deposits and margin deposits and other
Liens in the ordinary course of business, in each case securing Hedging Obligations and forward contracts, options, futures contracts, futures options, swaps, equity hedges or similar agreements or arrangements designed to protect such Obligor from
fluctuations in interest rates, currencies, equities or the price of commodities;
(7) Liens in favor of the Issuer or any Guarantor;
(8) inchoate Liens incident to construction or maintenance of real property, or Liens incident to construction or maintenance of real
property, now or hereafter filed of record for sums not yet delinquent or being contested in good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(9) statutory Liens arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in
good faith, if reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made therefor;
(10) Liens
consisting of pledges or deposits to secure obligations under workers’ compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;
(11) Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course
of business to which such Obligor is a party as lessee, provided the aggregate value of all such pledges and deposits in connection with any such lease does not at any time exceed 16
2
⁄
3
% of the annual fixed rentals payable under such lease;
(12) Liens consisting of deposits of
Property to secure such Obligor’s statutory obligations in the ordinary course of its business;
(13) Liens consisting of deposits of
Property to secure (or in lieu of) surety, appeal or customs bonds in proceedings to which such Obligor is a party in the ordinary course of its business, but not in excess of $25,000,000;
24
(14) Liens on “margin stock” (as defined in Regulation U of the Board of Governors of
the Federal Reserve System);
(15) Liens permitted under sale and lease-back transactions, and any renewals or extensions thereof, so long
as the Indebtedness secured thereby does not exceed $300,000,000 in the aggregate;
(16) Liens arising in connection with asset
securitization transactions, so long as the aggregate outstanding principal amount of the obligations of all Obligors secured thereby does not exceed $300,000,000 at any one time;
(17) Liens securing Specified Non-Recourse Debt;
(18) Liens (i) of a collection bank on the items in the course of collection, (ii) in favor of a banking or other financial
institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are customary in the banking industry and (iii) attaching to other prepayments,
deposits or earnest money in the ordinary course of business; and
(19) Take-or-pay obligations arising in the ordinary course of
business.
“
Property
” means with respect to any Person any property or asset, whether real, personal or mixed, or
tangible or intangible, including shares of capital stock.
“
Specified Non-Recourse Debt
” means any account
or trade receivable factoring, securitization, sale or financing facility, the obligations of which are non-recourse (except with respect to customary representations, warranties, covenants and indemnities made in connection with such facility) to
the applicable Obligor.
“
Subsidiary
” of any specified Person means any corporation, limited liability
company, limited partnership, association or other business entity of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
25
ARTICLE 4
R
EMEDIES
OF
THE
T
RUSTEE
AND
H
OLDERS
ON
E
VENT
OF
D
EFAULT
Section 4.01.
Event of Default; Acceleration of Maturity;
Waiver of Default.
An “
Event of Default
” with respect to Securities of any series means the occurrence of one or more of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days or more;
(b) default in the payment of the principal on any of the
Securities of such series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise;
(c) default by any Obligor in the performance, or breach, of any of its covenants in respect of the Securities of such series (other than
defaults pursuant to paragraphs (a) and (b) above), and continuance of such default or breach for a period of 90 days or more after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all affected series (voting together as a single class) thereby, a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “
Notice of Default
” hereunder;
(d) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of any Obligor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of such Obligor or for any substantial part of its Property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive
days;
(e) any Obligor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of such Obligor or for any substantial part of its Property, or make any general assignment for the benefit of creditors; or
(f) any
Guarantee (other than a Guarantee released pursuant to Section 12.09 hereof) shall not be (or shall be claimed by the relevant Guarantor not to be) in full force and effect.
If an Event of Default specified in Sections 4.01(a), 4.01(b), 4.01(c) or 4.01(f) with respect to the Securities of one or more series occurs
and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, the Trustee may, and at the direction of the Holders of not less than 25% in aggregate
principal amount of the Securities of all affected series then Outstanding (voting together as a single class) by notice in writing to the Issuer, shall 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 Outstanding Securities of each such series, together with all accrued and unpaid interest, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
26
If an Event of Default specified in Sections 4.01(d) or 4.01(e) occurs and is continuing, then
the entire principal amount of the Outstanding Securities will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder.
After a declaration of acceleration under Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section 4.01(f) or any
automatic acceleration under Sections 4.01(d) or 4.01(e), the Holders of a majority in principal amount of the Outstanding Securities of any series (each such series voting as a separate class) may rescind such acceleration with respect to the
Securities of such series (i) if all existing Events of Default with respect to the Securities of such series, except for nonpayment of the principal and interest on the Securities of such series that have become due solely as a result of such
acceleration, have been cured or waived, (ii) if rescission of acceleration would not conflict with any judgment or decree and (iii) if all sums paid or advanced by the Trustee in connection with any such Event of Default (including the
reasonable compensation, expenses, disbursements, and advances of the Trustee and its agents and counsel, but excluding any such sums paid or advanced by the Trustee as a result of negligence or bad faith) have been paid.
The Holders of a majority in principal amount of the Outstanding Securities of all affected series (voting together as a single class) may, by
written notice to the Issuer and the Trustee, also waive past defaults, except a default in the payment of principal of or interest on any Outstanding Security, or in respect of a covenant or a provision that cannot be modified or amended without
the consent of all affected Holders.
For all purposes under the Indenture, if a portion of the principal of any Original Issue Discount
Securities shall have been accelerated and declared or become due and payable pursuant to the provisions hereof, then, from and after such acceleration or declaration, unless such declaration has been rescinded and annulled, the principal amount of
such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02.
Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case
default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by
declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such
series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue
27
principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the
Holders, whether or not the principal of and interest on the Securities of such series be overdue.
In case the Issuer shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the
Property of the Issuer or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case
there shall be pending proceedings relative to the Issuer or any other obligor upon the Securities of any series under Bankruptcy Law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or its Property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to
the creditors or Property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Holders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or
to the creditors or Property of the Issuer or such other obligor,
28
(b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the
Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other Property payable or deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Holders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 5.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or
vote for or accept or adopt on behalf of any Holder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under the Indenture, or under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the 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, subject to the payment of the reasonable expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the
Holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of the Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was taken, and it shall not be necessary
to make any Holders of such Securities parties to any such proceedings.
29
Section 4.03.
Application of Proceeds.
Any moneys collected by the Trustee
pursuant to this Article in respect of the Securities of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities
of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and
expenses applicable to such series in respect of which moneys have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred
by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.07;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person lawfully entitled thereto.
Section 4.04.
Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by the 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 the Indenture or in aid of the exercise of any power granted in the Indenture or to enforce any other legal or equitable right
vested in the Trustee by the Indenture or by law.
Section 4.05.
Restoration of Rights on Abandonment of Proceedings
.
In case the Trustee shall have proceeded to enforce any right under the Indenture and such
30
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, each Guarantor and the
Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, each Guarantor, the Trustee and the Holders shall continue as though no such proceedings had been taken.
Section 4.06.
Limitations on Suits by Holder.
No Holder of any Security of any series shall have any right by virtue or by
availing of any provision of the Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to the Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless (i) such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided; (ii) the Holders of not less
than 25% in aggregate principal amount of the affected Securities then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder; (iii) such Holder or Holders shall
have offered to the Trustee such security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) 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 (v) no direction inconsistent with such written request shall have been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the affected Securities then Outstanding. It is understood and intended, and expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more
Holders of any Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of the Indenture to affect, disturb or prejudice the rights of any other such Holder, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 4.07.
Unconditional Right of Holders to Institute Certain Suits.
Notwithstanding any other provision in the
Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed or 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 4.08.
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in
Section 2.09 or Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
31
No delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy
given by the Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 4.09.
Control by Holders.
The Holders of a majority in aggregate principal amount of the Securities of all affected
series (voting together as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of each such series by the Indenture;
provided
,
however
, that such direction shall not be otherwise than in accordance with law and the provisions of the Indenture. Subject to the provisions of
Section 5.01, the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith
shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall 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 series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders.
Nothing in the 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 Holders.
Section 4.10.
Waiver of Past Defaults.
Except as otherwise provided in Section 4.01, Section 4.07 and
Section 7.02 the Holders of a majority in aggregate principal amount of the Outstanding Securities affected may, by notice to the Trustee, waive an existing default and its consequences on behalf of the Holders of all Outstanding Securities
with respect to which such default has occurred and is continuing. Upon such waiver, such default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
Section 4.11.
Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances
. The Trustee shall give to the Holders of the Securities of any series, as the names and addresses of such Holders appear on the Register, notice by mail of all defaults known to the Trustee which have occurred with respect
to the Securities of such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults shall have been cured or waived before the giving of such notice (the term “default” or “defaults”
for the purposes of this section being hereby defined to mean any
32
event or condition which is, or with notice or lapse of time or both would become, an Event of Default);
provided
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such
series.
Section 4.12.
Right of Court to Require Filing of Undertaking to Pay Costs.
In any suit for the enforcement of
any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 4.12 does not apply to a suit instituted by a Holder, or group of Holders, holding in the aggregate more than ten percent in principal amount of the Outstanding Securities or to a suit instituted by a Holder to enforce
payment of principal of or interest on any Security on the respective due dates expressed or provided for in such Security.
ARTICLE
5
C
ONCERNING
THE
T
RUSTEE
Section 5.01.
Duties and Responsibilities of the Trustee; During Default; Prior to Default.
(a) The duties and
responsibilities of the Trustee are as provided by the Trust Indenture Act and as set forth herein. Whether or not expressly so provided, every provision of the Indenture relating to the conduct or affecting the liability of or affording protection
to the Trustee is subject to this Article.
(b) Except during the continuance of an Event of Default, the Trustee need perform only
those duties that are specifically set forth in the Indenture and no others, and no implied covenants or obligations will be read into the Indenture against the Trustee. In case an Event of Default of which a Responsible Officer shall have actual
knowledge or shall have received written notice from the Issuer or any Holder of Securities of any series has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by the Indenture, 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 such person’s own affairs.
(c) Except as otherwise provided in the Trust Indenture Act, no provision of the 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.
Section 5.02.
Trustee’s Obligations with Respect to the Covenants
. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, any Obligor’s compliance with the covenants contained in Article 3 or with respect to
any
33
reports or other documents filed under the Indenture;
provided
,
however
, that nothing herein shall relieve the Trustee of any obligations to monitor the Issuer’s timely
delivery of all certificates required under Section 3.04 and to fulfill its obligations under Article 5 hereof.
Section 5.03.
Moneys Held by Trustee.
Subject to the provisions of Section 9.06 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 law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be liable for interest on any moneys received by it hereunder except such as it may agree with the Issuer in writing to pay thereon.
Section 5.04.
Reports by the Trustee to Holders.
Within 60 days after each May 15, beginning with May 15, 2014,
the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture Act Section 313(a), and file such reports with each stock exchange upon
which the Securities are listed and with the Commission if, and to the extent, required by Trust Indenture Act Section 313(d). The Issuer will promptly notify the Trustee in writing when Securities are listed on any stock exchange and of any
delisting thereof.
The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
Section 5.05.
Certain Rights of the Trustee
. Subject to Trust Indenture Act Sections 315(a) through (d):
(a) In the absence of bad faith on its part, the Trustee may conclusively rely, and will be protected in acting or refraining from acting, upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee
shall examine the document to determine whether it conforms to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). The Trustee, in its discretion, may make
further inquiry or investigation into such facts or matters as it sees fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally
or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel conforming to
Section 10.05 and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on the certificate or opinion.
34
(c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any attorney or agent appointed by the Trustee with due care.
(d) The Trustee will be under no obligation to
exercise any of the rights or powers vested in it by the Indenture or to institute, conduct or defend any litigation hereunder or in relation hereto at the request or direction of any of the Holders, unless such Holders have offered to the Trustee
security or indemnity as it may reasonably require against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(e) The Trustee will not be liable in its individual capacity for any action it takes, suffers or omits to take in good faith that it believes
to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 4.09 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 the Indenture.
(f) The Trustee
may consult with counsel of its selection, and any advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(g) No provision of the Indenture will require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense.
(h) The Trustee shall not be liable in its individual capacity for an error in judgment made in good faith by a Responsible Officer or other
officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
(i) The Trustee
shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by the Indenture.
(j) The Trustee shall have no duty to see to any recording, filing or depositing of the Indenture or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or to see to any such re-recording or re-filing or re-depositing thereof or to the maintenance of such security interest or the perfection thereof.
(k) The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee shall have received written notice from the Issuer or any Holder of the Securities or obtained actual knowledge thereof. In the absence of receipt of such notice or actual knowledge, the Trustee may conclusively
assume that there is no default or Event of Default.
35
(l) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(m) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(n) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in
any such certificate previously delivered and not superseded.
(o) The Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder.
(p) Any notice, request or direction of the Issuer to the Trustee mentioned herein
will be sufficiently evidenced by an Officer’s Certificate.
Section 5.06.
Trustee and Agents May Hold Securities;
Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 5.07.
Compensation and Indemnification of Trustee and Its Prior Claim.
(a) The Issuer will pay the Trustee compensation as agreed upon in writing for its services. The compensation of the Trustee is not limited by
any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including the reasonable compensation
and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ), except to the extent any such expense, disbursement or advance may arise from its negligence or bad faith. The Issuer and the
Guarantors, jointly and severally, also covenant to indemnify the Trustee, its directors, officers, employees and agents and each predecessor Trustee, its directors, officers, employees and agents for, and to hold each of them harmless against, any
loss, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) arising out of or in connection with the acceptance or administration of the Indenture or the trusts hereunder and the
performance of its duties hereunder and under the Securities, including the costs and expenses of defending itself against or investigating any claim of liability (whether asserted by the
36
Issuer, a Guarantor, any Holder or any other Person) in the premises and the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it
or any of its officers, or in connection with enforcing the provisions of this Section 5.07, except to the extent such loss liability or expense is due to the negligence or bad faith of the Trustee or such predecessor Trustee.
(b) To secure the Issuer’s and the Guarantor’s payment obligations in this Section, the Trustee will have a lien prior to the
Securities on all moneys or Property held or collected by the Trustee, in its capacity as Trustee, except moneys or Property held in trust to pay principal of, and interest on, particular Securities.
(c) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(d) or
Section 4.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The obligations of the Issuer and the Guarantors under this Section 5.07 shall survive the
resignation and removal of the Trustee and payment of the Securities.
Section 5.08.
Right of Trustee to Rely on
Officer’s Certificate, etc.
Subject to Section 5.01 and Section 5.05, whenever in the administration of the trusts of the 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 the Indenture upon the faith thereof.
Section 5.09.
Disqualification;
Conflicting Interests
. If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Issuer shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under the
Indenture with respect to Securities of more than one series.
Section 5.10.
Persons Eligible for Appointment as
Trustee.
The Indenture must always have a Trustee that satisfies the requirements of Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report
of condition.
Section 5.11.
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
37
resignation to the Issuer and by mailing notice thereof by first-class mail, postage prepaid, to Holders of the applicable series of Securities at their last addresses as they shall appear on the
Register. 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, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a
bona fide
Holder
of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act with respect to any series of Securities after written request therefor by the Issuer or by any Holder who has been a
bona fide
Holder of a Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act and shall fail to resign after written request therefor by the Issuer or by any Holder; or
(iii) the
Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its Property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its Property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case,
the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Holder who has been a
bona fide
Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of a 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
38
such series with the consent of the Issuer by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Issuer the evidence provided for in Section 6.01 of the
action in that regard taken by the Holders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor Trustee with respect to such series pursuant to any of the provisions of this Section 5.11 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 5.12.
(e) Any successor Trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 5.12.
Acceptance of Appointment by Successor.
Any successor Trustee appointed as provided in Section 5.11
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 9.06, pay over to the
successor Trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations.
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 prepared by and at the expense of the Issuer which (1) shall contain such provisions as shall be
deemed necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and (3) shall add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
Upon acceptance of appointment by
any successor Trustee as provided in this Section 5.12, the Issuer shall mail notice thereof by first-class mail, postage prepaid, to the Holders of Securities of any series for which such successor Trustee is acting as
39
trustee at their last addresses as they shall appear in the Register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.11. If the Issuer fails to mail such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Issuer.
Section 5.13.
Merger, Conversion, Consolidation or Succession to Business of
Trustee.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation
or national banking association without any further act will be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee in the Indenture, subject to Section 5.10.
In case at the time such successor to the Trustee shall succeed to the trusts created by the Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities
of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have
the full force which it is anywhere in the Securities of such series or in the Indenture 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 5.14.
Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described 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
included therein.
Section 5.15.
Trustee’s Disclaimer.
The Trustee (i) makes no representation as to
the validity or adequacy of the Indenture, the Securities of any series or any Guarantee, (ii) is not accountable for the Issuer’s use or application of the proceeds from the Securities of any series and (iii) is not responsible for
any statement in the Securities of any series other than its certificate of authentication.
ARTICLE 6
C
ONCERNING
THE
H
OLDERS
Section 6.01.
Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by the Indenture to be given or taken by a specified percentage in principal amount of the Holders of any or all series may be embodied in and evidenced by one or more instruments of
40
substantially similar tenor signed by such specified percentage of Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee.
If the Issuer shall solicit from the Holders of
Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Issuer may, at its option, as evidenced by an Officer’s Certificate and subject to Section 6.02, fix in advance a record
date for such series for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action or to revoke the same, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action, may be given before or after the record date, but only the Holders as of such record date of the requisite proportion of Outstanding Securities
of that series shall be entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date;
provided
,
however
, that no such authorization, agreement or consent by such Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of the Indenture not later than six months
after the record date.
Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose
of the Indenture and (subject to Section 5.01 and Section 5.05) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02.
Proof of Execution of Instruments and of Holding of Securities; Record Date.
Subject to Section 5.01 and
Section 5.05, the execution of any instrument by a Holder or his agent or proxy may be proved in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Register or by a certificate of the registrar
thereof. The Issuer may set a record date for purposes of determining the identity of Holders of Securities of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only Holders of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent. Notice of such record date may be given before or after any request for any action
referred to in Section 6.01 is made by the Issuer.
Section 6.03.
Holders to Be Treated as Owners
. Prior to the
due presentment for registration of transfer of any Security, 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 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
41
account of the principal of, and, subject to the provisions of the Indenture, interest on such Security 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 Security.
Section 6.04.
Securities Owned by Issuer Deemed Not Outstanding.
In
determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under the Indenture, Securities which are owned by the Issuer or any other
obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned, or has received written notice from the Issuer that such Securities 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 5.01 and 5.05, 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 6.05.
Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in the 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 applicable 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 upon 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
42
Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in the Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 7
A
MENDMENTS
, S
UPPLEMENTS
AND
W
AIVERS
Section 7.01.
Supplemental Indentures without Consent of Holders.
The Issuer, when authorized by a Resolution of the Board
of Directors, the Guarantors and the Trustee may amend or modify the Indenture or the Securities of any series or enter into an indenture supplemental hereto without notice to or the consent of any Holder in order to:
(a) cure ambiguities, omissions, defects or inconsistencies;
(b) make any change that would provide any additional rights or benefits to the Holders of the Securities of any series;
(c) provide for or add guarantors with respect to the Securities of any series;
(d) secure the Securities of any series;
(e) establish the form or forms or terms of the Securities of any series as contemplated by Section 2.01 and Section 2.03 herein;
(f) provide for uncertificated Securities of any series in addition to or in place of certificated Securities of the applicable series;
(g) evidence and provide for the acceptance of appointment by a successor Trustee;
(h) provide for the assumption by a successor company of the Issuer’s obligations to the Holders of the Securities of any series in
compliance with the applicable provisions of the Indenture;
(i) qualify the Indenture under the Trust Indenture Act;
(j) conform any provision in the Indenture or the terms of the Securities of any series to the prospectus, offering memorandum, offering
circular or any other document pursuant to which the Securities of such series were offered; or
(k) make any change that does not
adversely affect the rights of any Holder in any material respect.
The Trustee is hereby authorized to join with the Issuer and the
Guarantors in the execution of any such amendment or supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the
43
conveyance, transfer, assignment, mortgage or pledge of any Property thereunder, but the Trustee shall not be obligated to enter into any such amendment or supplemental indenture which affects
the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
Any amendment or supplemental indenture authorized
by the provisions of this section may be executed without notice to and without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02.
Supplemental Indentures with Consent of Holders.
(a) With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such amendment or supplemental indenture (voting together as a single class), the Issuer, when authorized by a Resolution of the Board of Directors, the Guarantors and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such series, and such Holders may waive future compliance by the Issuer with a provision of the Indenture or the Securities.
(b) Notwithstanding the provisions of paragraph (a), without the consent of the Holder of each affected Security of a particular series, an
amendment, supplement or waiver may not:
(i) reduce the principal amount, or extend the fixed maturity, of the Securities
of such series or alter or waive the redemption provisions of the Securities of such series;
(ii) impair the right of any
Holder of the Securities of such series to receive payment of principal or interest on the Securities of such series on and after the due dates for such principal or interest;
(iii) change the currency in which principal or interest is paid;
(iv) reduce the percentage in principal amount Outstanding of Securities of such series which must consent to an amendment,
supplement or waiver or consent to take any action;
(v) impair the right to institute suit for the enforcement of any
payment on the Securities of such series;
(vi) waive a payment default with respect to the Securities of such series;
44
(vii) reduce the interest rate or extend the time for payment of interest on the
Securities of such series; or
(viii) adversely affect the ranking of the Securities of such series.
An amendment, supplemental indenture or waiver which changes, eliminates or waives any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the
Holders 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.
Section 7.03.
Execution of Amendments or Supplemental Indentures or Waivers.
Upon the request of the Issuer, accompanied by
a copy of a Resolution of the Board of Directors authorizing the execution of any such amendment, supplemental indenture or waiver and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and other documents, if any,
required by Section 6.01, the Trustee shall join with the Issuer and the Guarantors in the execution of such amendment, supplemental indenture or waiver unless such supplemental indenture or waiver affects the Trustee’s own rights, duties
or immunities under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amendment, supplemental indenture or waiver.
The Trustee, subject to the provisions of Sections 5.01 and 5.05, may receive an Officer’s Certificate and an Opinion of Counsel as
conclusive evidence that any amendment, supplemental indenture or waiver executed pursuant to this Article 7 complies with the applicable provisions of the Indenture.
Promptly after the execution by the Issuer, the Guarantors and the Trustee of any amendment, supplemental indenture or waiver pursuant to the
provisions of this Section, the Issuer shall mail a notice thereof by first-class mail, postage prepaid, to the Holders of each series affected thereby at their addresses as they shall appear on the Register of the Issuer, setting forth in general
terms the substance of such amendment, supplemental indenture or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplemental indenture
or waiver.
Section 7.04.
Effect of Amendment, Supplemental Indenture or Waiver.
Upon the execution of any amendment,
supplemental indenture or waiver pursuant to the provisions hereof, the 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
the Indenture of the Trustee, the Issuer, the Guarantors and the Holders of each series affected thereby shall thereafter be determined, exercised and
45
enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such amendment, supplemental indenture or waiver shall be and be deemed to
be part of the terms and conditions of the Indenture for any and all purposes.
Section 7.05.
Effect of Consent.
After
an amendment, supplemental indenture or waiver becomes effective, it will bind every Holder unless it is of the type requiring the consent of each Holder affected. If the amendment, supplemental indenture or waiver is of the type requiring the
consent of each Holder affected, the amendment, supplemental indenture or waiver will bind each Holder that has consented to it and every subsequent Holder of a Security that evidences the same debt as the Security of the consenting Holder.
Section 7.06.
Notation on Securities in Respect of Amendments, Supplemental Indentures or Waivers.
Securities of
any series authenticated and delivered after the execution of any amendment, supplemental indenture or waiver pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series, as to any matter provided
for by such amendment, supplemental indenture or waiver. If the Issuer 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 the Indenture
contained in any such amendment, supplemental indenture or waiver may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
Section 7.07.
Conformity with the Trust Indenture Act.
Every amendment, supplemental indenture or waiver executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE 8
C
ONSOLIDATION
, M
ERGER
, S
ALE
OR
C
ONVEYANCE
Section 8.01.
Consolidation, Merger or Sale of Assets by the Issuer
.
(a) The Issuer shall not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer
or otherwise dispose of all or substantially all of its assets to any Person or Persons (other than a transfer or other disposition of assets to any of the Issuer’s wholly owned Subsidiaries) in a single transaction or through a series of
transactions, unless:
(i) the Issuer shall be the continuing Person or, if the Issuer is not the continuing Person, the
resulting, surviving or transferee Person (the “
Surviving Entity
”) is a company organized (or formed in the case of a limited liability company) and existing under the laws of the United States or any state or territory thereof or
the District of Columbia;
(ii) the Surviving Entity shall expressly assume all of the Issuer’s obligations under the
Securities and the Indenture, and shall, for that purpose, execute a supplemental indenture in form satisfactory to the Trustee which will be delivered to the Trustee;
46
(iii) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, no default has occurred and is continuing; and
(iv) the Issuer or the Surviving Entity
will have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel stating that the transaction or series of transactions and a supplemental indenture, if any, complies with this Section 8.01 and that all conditions
precedent in the Indenture relating to the transaction or series of transactions have been satisfied.
(b) The restrictions in
Section 8.01(a)(iii) shall not be applicable to:
(i) the merger or consolidation of the Issuer with an affiliate of
such Person if the Board of Directors determines in good faith that the purpose of such transaction is principally to change the state of incorporation of the Issuer or convert the form of organization of the Issuer to another form; or
(ii) the merger of the Issuer with or into a single direct or indirect wholly owned Subsidiary of the Issuer pursuant to
Section 1924(b)(4) (or any successor provision) of the Business Corporation Law of the State of Pennsylvania or Section 251(g) (or any successor provision) of the General Corporation Law of the State of Delaware (or similar provision of
the Issuer’s state of incorporation).
Section 8.02.
Successor Substituted.
If any consolidation or merger or any
sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets occurs in accordance with the Indenture, the successor Person shall succeed to, and be substituted for, and may exercise every
right and power of the Issuer under the Indenture with the same effect as if such successor Person had been named herein as the Issuer, and the Issuer shall (except in the case of a lease) be discharged from all obligations and covenants under the
Indenture and any Securities.
ARTICLE 9
D
EFEASANCE
AND
D
ISCHARGE
; U
NCLAIMED
M
ONEYS
Section 9.01.
Satisfaction and Discharge of Indenture.
The Issuer may terminate its obligations and the obligations of the
Guarantors under the Indenture with respect to the Securities of any series and the Guarantees of the Securities of such series when:
(a) either (i) all the Securities of such series that have been authenticated and delivered have been cancelled or delivered to the
Trustee for cancellation (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09); or (ii) all the Securities of such series issued
that have not been cancelled or delivered to the Trustee for cancellation
47
shall have become due and payable, or are by their terms to become due and payable at their final maturity within one year, or are to be called for redemption within one year, under irrevocable
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s name, and at the Issuer’s expense, and the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee
sufficient funds to pay and discharge the entire indebtedness on the Securities of such series to pay principal and interest; and
(b) The
Issuer shall have paid or caused to be paid all other sums then due and payable under the Indenture with respect to the Securities of such series; and
(c) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent under the Indenture relating to the satisfaction and discharge of the Indenture with respect to the Securities of such series have been complied with.
If the foregoing conditions are met, the Trustee, on written demand of the Issuer accompanied by an Officer’s Certificate and an Opinion
of Counsel complying with Section 10.05 and at the cost and expense of the Issuer, shall execute proper instruments prepared by the Issuer acknowledging such satisfaction of and discharging the Indenture with respect to the Securities of a
series, except as to:
(i) rights of registration of transfer and exchange of Securities of such series, and the
Issuer’s right of optional redemption, if any;
(ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities;
(iii) rights of Holders to receive payments when due of principal thereof and interest thereon;
(iv) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including the obligations of the Issuer under
Section 5.07;
(v) the rights of the Holders of such series as beneficiaries hereof with respect to the Property so
deposited with the Trustee payable to all or any of them; and
(vi) the rights of the Issuer to be repaid any money
pursuant to Sections 9.05 and 9.06.
Section 9.02.
Legal Defeasance.
After the 91st day following the deposit referred
to in Section 9.02(a), the Issuer will be deemed to have paid and will be discharged from its obligations in respect of the Securities of any series and the Indenture, other than the Issuer’s obligations in Article 2 and Section 3.02,
Section 5.07, Section 5.11 and listed in clauses (i), (ii), (iii), (iv), (v) and (vi) of Section 9.01(c), and the Guarantees will no longer be in effect with respect to the Securities of such series, provided the following
conditions have been satisfied:
48
(a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust
funds 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 cash, Governmental Obligations or a combination thereof (other than
cash in an amount equal to moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.06), in each case, sufficient (with respect to Governmental Obligations, such sufficiency shall be measured with respect to
the scheduled payments of principal and interest thereon) without reinvestment, in the written opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied by the Trustee to pay and
discharge, all of the principal of and interest on such Securities due on or prior to maturity or if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s
name and at the Issuer’s expense, due on or prior to the redemption date;
(b) The Issuer has delivered to the Trustee an Opinion of
Counsel stating that, as a result of an Internal Revenue Service ruling or a change in applicable federal income tax law, the Holders of the Securities of such series will not recognize gain or loss for federal income tax purposes as a result of the
deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
(c) No default with respect to the Outstanding Securities of such series has occurred and is continuing at the time of such deposit after
giving effect to the deposit or, in the case of legal defeasance under this Section 9.02, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit (other
than an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), it being understood that this condition is not deemed satisfied until after the 91st day;
(d) The defeasance will not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all
Securities of such series were in default within the meaning of such Act;
(e) The defeasance will not result in a breach or violation of,
or constitute a default under, the Indenture (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), the Guarantees or any other material agreement or
instrument to which the Issuer is a party;
(f) The defeasance will not result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and
49
(g) The Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with;
Prior
to the end of the 91-day period, none of the Issuer’s or any Guarantor’s obligations under the Indenture will be discharged. Thereafter, the Trustee upon request will acknowledge in writing the discharge of the Issuer’s and the
Guarantors’ obligations under the Securities and the Indenture except for the surviving obligations specified above.
Section 9.03.
Covenant Defeasance.
After the 91st day following the deposit referred to in Section 9.02(a) with
respect to the Securities of a series, the Issuer’s and the Guarantors’ obligations with respect to the Securities of such series set forth in Section 3.06, Section 3.07 and Section 8.01 will terminate and
Section 4.01(c) (insofar as relating to the covenants subject to the covenant defeasance pursuant to this Section 9.03) will no longer constitute a default with respect to the Securities of such series, provided the following conditions
have been satisfied:
(a) The Issuer has complied with clauses (a), (c), (d), (e), (f) and (g) of Section 9.02; and
(b) the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities of such series will
not recognize gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not
occur.
Notwithstanding a covenant defeasance with respect to Section 8.01, any Person to whom a sale, assignment, conveyance, lease,
transfer or other disposition is made pursuant to Section 8.01, shall as a condition to such sale, assignment, conveyance, lease, transfer or other disposition, assume by an indenture supplemental hereto in form satisfactory to the Trustee,
executed by such successor Person and delivered to the Trustee, the obligations of the Issuer to the Trustee under Section 5.07 and the second to the last paragraph of Section 9.04.
Except as specifically stated above, none of the Issuer’s, or except as provided in Section 12.09 any Guarantor’s, obligations
under the Indenture will be discharged.
Section 9.04.
Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 9.06, all moneys and Governmental Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.01 or Section 9.02 with respect to the Securities of a series 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 for the payment or redemption of which such moneys
or Governmental Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest. Such moneys and Governmental Obligations (including the proceeds thereof) need not be segregated from other funds
except to the extent required by law.
50
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or Governmental Obligations deposited pursuant to Section 9.01 or Section 9.02 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders.
Anything in this Article 9 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the request of the Issuer any moneys held by it as provided in Section 9.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee
(which may be the opinion delivered under Section 9.02(a) but which opinion need not be given unless Governmental Obligations have been deposited), are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent satisfaction and discharge, legal defeasance or covenant defeasance.
Section 9.05.
Repayment of Moneys Held by
Paying Agent.
In connection with the satisfaction and discharge of the Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of the Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to the Issuer or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 9.06.
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 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 Security of such series 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.
ARTICLE 10
M
ISCELLANEOUS
P
ROVISIONS
Section 10.01.
Incorporators, Stockholders, Employees, Officers and Directors Exempt from Individual Liability.
No recourse
under or upon any obligation, covenant or agreement contained in the Indenture, the Guarantees or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or
future stockholder, employee, officer or director, as such, of the Issuer, any Guarantor, or of any of their respective successors, either directly or
51
through the Issuer, any Guarantor, or of any of their respective successors, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
Section 10.02.
Provisions of Indenture for the Sole Benefit of Parties and Holders.
Nothing in the Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any Person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under the
Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 10.03.
Successors and Assigns of Issuer Bound by Indenture.
All the terms, covenants and agreements of the Issuer
and, except as provided in Section 12.09, each Guarantor in the Indenture and the Securities shall bind its successors and assigns.
Section 10.04.
Notices and Demands on Issuer, Trustee and Holders.
Any notice or demand which by any provision of the
Indenture is required or permitted to be given or served by the Trustee or by the Holders to or on the Issuer or any Guarantor may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Comcast Corporation, One Comcast Center, Philadelphia, PA 19103-2838 (fax: (215) 286-7744), Attention: Treasurer and a copy of such notice or
demand shall be sent Attention: General Counsel at the same address. Any notice, direction, request or demand by the Issuer or any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if in writing
and given or made by being mailed by first-class mail, postage prepaid, addressed to the Corporate Trust Office of the Trustee, attention: Corporate Trust Administration.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, PDF, facsimile
transmission or other similar unsecured electronic methods,
provided
,
however
, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen
signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses,
costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to
assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and
misuse by third parties.
52
Where the Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Register. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where the Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Holders when such notice is required to be given pursuant to any provision of the Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 10.05.
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 the Indenture, the Issuer shall furnish to the Trustee an
Officer’s Certificate stating that all conditions precedent, if any, provided for in the 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 the Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in the Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for in the Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, information with respect to which is in
the possession of the
53
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 Opinion of Counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is
independent.
Section 10.06.
Payments Due on Saturdays, Sundays and Holidays.
Except as provided pursuant to
Section 2.01 and Section 2.03 pursuant to a Resolution of the Board of Directors and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to the Indenture, each in accordance with
Section 2.03, if the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity of interest or principal or the date fixed for redemption, and no interest shall accrue for the period after
such date.
Section 10.07.
Trust Indenture Act.
The Indenture shall incorporate and be governed by the
provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by the Trust Indenture
Act, the imposed duties shall control.
Section 10.08.
New York Law to Govern; Waiver of Trial by Jury.
The
Indenture, including any Guarantee, and each Security shall be governed by and construed in accordance with the laws of the State of New York.
Each of the Issuer, each Guarantor and the Trustee irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to the Indenture or the transactions contemplated hereby.
Section 10.09.
Counterparts.
The 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.
54
Section 10.10.
Effect of Headings.
The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.11.
Separability.
In case any one or more of the provisions contained in the Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect or impair any other provisions of the Indenture or of such Securities, but the Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section 10.12.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.13.
U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.
Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE 11
R
EDEMPTION
OF
S
ECURITIES
AND
S
INKING
F
UND
P
ROVISIONS
Section 11.01.
Applicability of Article.
The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02.
Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Securities of any
series to be redeemed as a whole or in part at the option of the Issuer or otherwise shall be given by mailing notice of such redemption by first-class mail, postage prepaid, at least 30 days but not more than 60 days prior to the date fixed for
redemption to such Holders of such series at their last addresses as they shall appear upon the Register, unless another redemption notice period shall be established with respect to the Securities of a series as contemplated by Section 2.03.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
55
The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including CUSIP numbers, if available) and shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price (or if not then ascertainable, the manner of
calculation thereby), the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in such notice and that unless the Issuer defaults in payment of the redemption price, on and after said date interest will cease to accrue thereon or on the portions
thereof called for redemption. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed shall be prepared and given by the Issuer or, at the Issuer’s
request, prepared by the Issuer and given by the Trustee in the name and at the expense of the Issuer.
The election of the Issuer to
redeem any Securities shall be evidenced by a Resolution of the Board of Directors or in another manner specified as contemplated by Section 2.03 for such Securities. In case of any redemption at the election of the Issuer or in the case of a
mandatory redemption (other than a mandatory redemption scheduled to occur on fixed dates), the Issuer shall, at least 45 days (30 days if the Securities to be redeemed are Global Securities, the redemption is in whole and the Issuer prepares the
notice of redemption) prior to the redemption date fixed by the Issuer (unless a shorter notice shall be satisfactory to the Trustee or unless otherwise provided pursuant to Section 2.03), notify the Trustee of such redemption date, of the
principal amount of Securities of such series to be redeemed and of the provision of the Securities of such series pursuant to which the redemption is to be made. In the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election or an obligation of the Issuer which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
If less than all the Securities of a series are to be redeemed, the Securities to be redeemed shall be selected by lot by the Depositary in
the case of Securities represented by a Global Security, or, in the case of Securities not represented by a Global Security, the Trustee shall select, in such manner as it shall deem appropriate and fair, 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
56
series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of the 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.
Not later than 10:00 A.M. (New York City time) on the redemption date specified in the notice of redemption given as provided in this Section,
the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.03) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.
Section 11.03.
Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to
accrue and such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under the Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any payment of interest becoming due on or before the date fixed for redemption shall be payable to the
Holders of such Securities registered as such on the relevant record date.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security)
borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so
presented.
Section 11.04.
Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities
shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 15 days prior to the last date on which notice of
57
redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
ARTICLE 12
G
UARANTEES
Section 12.01.
The Guarantees.
Subject to the provisions of this Article, each Guarantor hereby irrevocably, fully and
unconditionally guarantees, jointly and severally, on an unsecured basis, the full and punctual payment (whether at maturity, upon redemption, or otherwise) of the principal of and interest on, and all other amounts payable under, each Security, and
the full and punctual payment of all other amounts payable by the Issuer under the Indenture. Upon failure by the Issuer to pay punctually any such amount, each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in the Indenture.
Section 12.02.
Guarantees Unconditional.
The obligations of each Guarantor
hereunder are unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged or otherwise affected by
(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Issuer under the Indenture or any
Security, by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Indenture or any Security;
(c) any change in the corporate existence, structure or ownership of the Issuer, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Issuer or its assets or any resulting release or discharge of any obligation of the Issuer contained in the Indenture or any Security;
(d) the existence of any claim, set-off or other rights which any Guarantor may have at any time against the Issuer, the Trustee, any other
Guarantor or any other Person, whether in connection with the Indenture or unrelated transactions,
provided
that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(e) any invalidity, irregularity or unenforceability relating to or against the Issuer for any reason of the Indenture or any Security, or any
provision of applicable law or regulation purporting to prohibit the payment by the Issuer of the principal of or interest on any Security or any other amount payable by the Issuer under the Indenture; or
(f) any other act or omission to act or delay of any kind by the Issuer, the Trustee or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder.
58
Section 12.03.
Discharge; Reinstatement.
Each Guarantor’s obligations
hereunder will remain in full force and effect until the principal of and interest on the Securities of each series and all other amounts payable by the Issuer under the Indenture have been paid in full. If at any time any payment of the principal
of or interest on any Security or any other amount payable by the Issuer under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, each Guarantor’s
obligations hereunder with respect to such payment will be reinstated as though such payment had been due but not made at such time.
Section 12.04.
Waiver by the Guarantors.
Each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest
and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Issuer or any other Person.
Section 12.05.
Subrogation and Contribution.
Upon making any payment with respect to any obligation of the Issuer under
this Article, the Guarantor making such payment will be subrogated to the rights of the payee against the Issuer with respect to such obligation,
provided
that such Guarantor may not enforce either any right of subrogation, or any right to
receive payment in the nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so long as any amount payable by the Issuer hereunder or under the Securities remains unpaid.
Section 12.06.
Stay of Acceleration.
If acceleration of the time for payment of any amount payable by the Issuer under the
Indenture or the Securities is stayed upon the insolvency, bankruptcy or reorganization of the Issuer, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Guarantors hereunder forthwith
on demand by the Trustee or the Holders.
Section 12.07.
Limitation on Amount of Guarantees.
Notwithstanding
anything to the contrary in this Article, each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that no Guarantee shall constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of other U.S. and non-U.S. law. To effectuate that intention, the Trustee, the Holders and each Guarantor hereby irrevocably agree that the obligations
of each Guarantor under its Guarantee are limited to the maximum amount that would not render such Guarantor’s obligations subject to avoidance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any
comparable provision of other U.S. and non-U.S. law.
Section 12.08.
Execution and Delivery of Guarantees.
The
execution by each Guarantor of the Indenture evidences the Guarantee of such Guarantor, whether or not the person signing as an officer of such Guarantor still holds that office at the time of authentication of any Security. The delivery of any
Security by the Trustee after authentication constitutes due delivery of the Guarantees set forth in the Indenture on behalf of the respective Guarantors.
59
Section 12.09.
Release of Guarantees
. The Guarantee of a Guarantor will terminate
upon:
(a) a sale or other disposition (including by way of consolidation or merger) of a Guarantor or the sale or disposition of all or
substantially all the assets of such Guarantor (in each case other than to the Issuer or a Guarantor or a Person who, prior to such sale or other disposition, is an affiliate of the Issuer or a Guarantor);
(b) defeasance or discharge of the Securities, as provided in Article 9.
Upon delivery by the Issuer to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the foregoing effect, the Trustee
will execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under its Guarantee.
[Signature Page Follows]
60
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly executed as of the
date set forth above.
|
|
|
|
|
COMCAST CORPORATION, as Issuer
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President, Chief Accounting Officer and Controller
|
|
|
|
|
|
NBCUNIVERSAL MEDIA, LLC, as Guarantor
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
COMCAST CABLE COMMUNICATIONS, LLC, as Guarantor
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
COMCAST CABLE HOLDINGS, LLC, as Guarantor
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President
|
[SIGNATURE PAGE 1 OF 2 TO INDENTURE]
|
|
|
|
|
COMCAST MO GROUP, INC., as Guarantor
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
COMCAST MO OF DELAWARE, LLC, as Guarantor
|
|
|
|
|
By:
|
|
/s/ Lawrence J. Salva
|
|
|
|
Name: Lawrence J. Salva
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON, as Trustee
|
|
|
|
|
By:
|
|
/s/ Laurence J. O’Brien
|
|
|
|
Name: Laurence J. O’Brien
|
|
|
|
Title: Vice President
|
[SIGNATURE PAGE 2 OF 2 TO INDENTURE]
