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Exhibit 4.9
CONTINENTAL CABLEVISION, INC.
and
BANK OF MONTREAL TRUST COMPANY,
as Trustee
__________
INDENTURE
Dated as of December 13, 1995
__________
$600,000,000
8.30% Senior Notes Due 2006
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TABLE OF CONTENTS/*/
Page
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PARTIES.............................................. 1
RECITALS............................................. 1
Purpose of Indenture............................ 1
Form of Face of Note............................ 1
Form of Trustee's Certificate of
Authentication................................ 4
Form of Reverse of Note......................... 5
Assignment Form................................. 10
Option of Holder to Elect Prepayment............ 11
Compliance with Legal Requirements.............. 12
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Definitions.......................... 12
Acceleration Notice.................. 12
Accreted Value....................... 12
Affiliate............................ 13
Annualized Cash Flow................. 13
Banking Day.......................... 13
Board of Directors................... 13
Capital Stock........................ 13
Common Stock......................... 13
Company.............................. 14
Defaulted Interest................... 14
Depositary........................... 14
Event of Default..................... 14
Exchange Notes....................... 14
Exempt Repurchase Indebtedness....... 14
Exempt Repurchase.................... 14
GAAP................................. 15
Global Notes......................... 15
Indebtedness......................... 15
Indenture............................ 16
Initial Tender Period................ 16
Institutional Accredited Investor.... 16
Interest Rate Agreement.............. 16
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/*/ This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Investment Grade Rated............... 16
June Senior Debt Securities........... 17
Lien................................. 17
New Borrowing Group.................. 17
1998-1999 Share Repurchase
Program............................ 18
1995 Credit Facility................. 18
1994 Credit Facility................. 18
1992 Preferred Stock................. 18
Non-U.S. Person...................... 18
Note or Notes; Outstanding........... 18
Noteholder........................... 19
Note Restricted Group................ 19
Officers' Certificate................ 19
Offshore Global Note................. 20
Offshore Notes Exchange Date......... 20
Offshore Physical Notes.............. 20
Operating Cash Flow.................. 20
Opinion of Counsel................... 21
Permanent Offshore Global Note....... 21
Person............................... 21
Physical Notes....................... 21
Pre-Acceleration Notice.............. 21
Predecessor Note..................... 21
Preferred Event Put Notice........... 21
Preferred Event Redemption Date...... 21
Preferred Event Redemption Price..... 21
Preferred Stock Change
of Control Event................... 21
Preferred Stock Redemption Payment... 22
Principal Office of the Trustee...... 22
Principal Property................... 22
Private Placement Legend............. 22
Proposed Date........................ 22
Put Option Borrowing................. 22
Put Option Redemption Date........... 23
Put Option Redemption Price.......... 23
Put Option Stock Repurchase.......... 23
Put Option Transaction............... 23
Put Option Transaction Date.......... 23
QIB.................................. 23
Registration......................... 23
Registration Rights Agreement........ 23
Registration Statement............... 23
Regulation S......................... 23
Responsible Officer.................. 23
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Restricted Payments.................. 23
Restricted Stock Purchase
Agreement.......................... 23
Rule 144A............................ 24
SEC.................................. 24
Securities Act of 1933............... 24
Senior Subordinated Debt............. 24
Stock Liquidation Agreement.......... 24
Subsidiary........................... 24
Temporary Offshore Global Note....... 24
Tender Discharge Date................ 24
Tender Period........................ 24
Total Interest Expense............... 24
Trustee.............................. 25
Trust Indenture Act of 1939.......... 25
2005 Debentures...................... 25
2001 Notes........................... 25
2013 Debentures...................... 25
Unrestricted Subsidiary.............. 25
U.S. Global Note..................... 25
U.S. Government Obligations.......... 25
U.S. Physical Notes.................. 26
Vice President....................... 26
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
SECTION 2.01 Designation, Amount and Issue of
Notes.............................. 26
2.02 Form of Notes........................ 26
2.03 Restrictive Legends.................. 27
2.04 Date and Denomination of Notes....... 29
2.05 Execution of Notes................... 31
2.06 Exchange and Registration of
Notes; Transfer of Notes............. 32
2.07 Book-Entry Provisions for U.S. Global
Note and Offshore Global Note.. 33
2.08 Special Transfer Provisions.......... 35
2.09 Mutilated, Destroyed, Lost or
Stolen Notes......................... 39
2.10 Temporary Notes...................... 40
2.11 Cancellation of Notes Paid, etc...... 41
2.12 CUSIP Numbers........................ 41
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ARTICLE THREE
REDEMPTION OF NOTES; PREPAYMENT AT
THE OPTION OF THE HOLDERS
SECTION 3.01 Redemption at the Option of the
Company.............................. 41
3.02 Prepayment at the Option of the
Holder - Preferred Stock
Redemption Payment................... 41
3.03 Prepayment at the Option of the
Holder - Exempt Repurchases
and Borrowing........................ 44
3.04 Mailing of Notices..................... 46
3.05 Cancellation of Notes
after Prepayment..................... 47
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of Principal, Premium and
Interest............................. 47
4.02 Offices for Notices and Payments,
etc.................................. 47
4.03 Appointments to Fill Vacancies
in Trustee's Office.................. 48
4.04 Provision as to Paying Agent.......... 48
4.05 Corporate Existence and Maintenance
of Properties.......................... 49
4.06 Restricted Payments................... 49
4.07 Limitation on Indebtedness............ 50
4.08 Limitation on Investment in
Subsidiaries other than Note
Restricted Group....................... 50
4.09 Transactions with Stockholders and
Affiliates............................. 51
4.10 Certificate to Trustee................ 51
4.11 Limitation on Liens................... 51
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ARTICLE FIVE
NOTEHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Noteholders Lists..................... 53
5.02 Reports by the Company................ 53
5.03 Reports by the Trustee................ 54
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON THE OCCURRENCE OF AN EVENT OF DEFAULT
SECTION 6.01 Events of Default..................... 54
6.02 Payment of Notes on Default;
Suit Therefor....................... 57
6.03 Application of Monies Collected
by Trustee.......................... 59
6.04 Proceedings by Noteholder............. 60
6.05 Proceedings by Trustee................ 61
6.06 Remedies Cumulative and Continuing.... 61
6.07 Direction of Proceedings and Waiver
of Defaults by Majority
Noteholders......................... 61
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01 Duties and Responsibilities of
Trustee; During Default;
Prior to Default.................... 62
7.02 Certain Rights of the Trustee......... 64
7.03 No Responsibility for Recitals, etc... 65
7.04 Trustee, Paying Agents or Registrar
May Own Notes....................... 65
7.05 Monies to Be Held in Trust............ 65
7.06 Compensation and Expenses of
Trustee............................. 66
7.07 Officers' Certificate as Evidence..... 66
7.08 Eligibility of Trustee................ 67
7.09 Resignation or Removal of Trustee..... 67
7.10 Acceptance by Successor Trustee....... 68
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7.11 Succession by Merger, etc............. 69
7.12 Disqualification; Conflicting
Interests........................... 70
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
SECTION 8.01 Action by Noteholders................. 70
8.02 Proof of Execution by
Noteholders; Record Date............ 70
8.03 Who Are Deemed Absolute Owners........ 71
8.04 Company-Owned Notes Disregarded....... 71
8.05 Revocation of Consents; Future
Holders Bound....................... 71
ARTICLE NINE
NOTEHOLDERS' MEETINGS
SECTION 9.01 Purposes of Meetings.................. 72
9.02 Call of Meetings by Trustee........... 72
9.03 Call of Meetings by Company or
Noteholders......................... 73
9.04 Qualifications for Voting............. 73
9.05 Regulations........................... 73
9.06 Voting................................ 74
9.07 No Delay of Rights by Meeting......... 74
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01 Supplemental Indentures without
Consent of Noteholders............... 75
10.02 Supplemental Indentures with Consent
of Noteholders....................... 76
10.03 Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.... 77
10.04 Notation on Notes...................... 77
10.05 Evidence of Compliance of Supple-
mental Indenture to Be Furnished
to the Trustee....................... 77
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.01 Company May Consolidate, etc., on
Certain Terms........................ 78
11.02 Successor Corporation to Be
Substituted.......................... 78
11.03 Opinion of Counsel to Be Given
to Trustee........................... 79
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01 Discharge of Indenture................. 79
12.02 Deposited Monies to Be Held in Trust
by Trustee........................... 80
12.03 Paying Agent to Repay Monies Held...... 80
12.04 Return of Unclaimed Monies............. 80
ARTICLE THIRTEEN
DEFEASANCE
SECTION 13.01 Defeasance in Respect of
the Notes............................ 80
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 14.01 Indenture and Notes Solely
Corporate Obligations................ 82
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ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01 Provisions Binding on Company's
Successors........................... 83
15.02 Official Acts by Successor
Corporation......................... 83
15.03 Addresses for Notices, etc............ 83
15.04 Governing Law......................... 83
15.05 Evidence of Compliance with
Conditions Precedent................ 83
15.06 Legal Holidays........................ 84
15.07 Trust Indenture Act to Control........ 84
15.08 No Security Interest Created.......... 84
15.09 Benefits of Indenture................. 84
15.10 Table of Contents, Headings, etc...... 85
15.11 Execution in Counterparts............. 85
Signatures............................................ 86
Acknowledgments....................................... 87
EXHIBIT A Form of Certificate................... A-1
EXHIBIT B Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Accredited Investors.......... B-1
EXHIBIT C Form of Certificate to Be Delivered
in Connection with Transfers Pursuant
to Regulation S....................... C-1
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THIS INDENTURE dated as of December 13, 1995 between CONTINENTAL CABLEVISION,
INC., a Delaware corporation (hereinafter sometimes called the "Company"), and
BANK OF MONTREAL TRUST COMPANY, a New York banking corporation, as trustee
hereunder (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 8.30% Senior Notes Due 2006 (hereinafter sometimes called the
"Notes"), in an aggregate principal amount not to exceed $600,000,000 (except as
otherwise provided below) and, to provide the terms and conditions upon which
the Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes and the certificate of authentication to be borne by the
Notes are to be substantially in the following forms, respectively:
[FORM OF FACE OF NOTE]
No. R- $
CUSIP No.____________
CONTINENTAL CABLEVISION, INC.
8.30% Senior Note Due 2006
CONTINENTAL CABLEVISION, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to , or registered assigns, the principal
sum of Dollars on May 15, 2006 at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, semi-annually on May 15 and November 15 of each year,
commencing on May 15, 1996 on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this Note
[(subject to adjustment as provided below)]/*/, from the May 15 or the November
15, as the case may be, next preceding the date of this Note to which
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/*/ To be deleted in Exchange Notes.
interest has been paid or duly provided for, unless the date hereof is a date to
which interest has been paid or duly provided for, in which case from the date
of this Note, or unless no interest has been paid or duly provided for on the
Notes, in which case from December 13, 1995 until payment of said principal sum
has been made or duly provided for. Notwithstanding the foregoing, if the date
hereof is after any May 1 or November 1, as the case may be, and before the
following May 15 or November 15, this Note shall bear interest from such May 15
or November 15; provided, however, that if the Company shall default in the
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payment of interest due on such May 15 or November 15, then this Note shall bear
interest from the next preceding May 15 or November 15 to which interest has
been paid or duly provided for or, if no interest has been paid or duly provided
for on the Notes, from December 13, 1995. The interest so payable on any May 15
or November 15 will be paid to the person in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on the record
date which shall be the May 1 or November 1 (whether or not a business day) next
preceding such May 15 or November 15; provided that any such interest not
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punctually paid or duly provided for shall be payable as provided in the
Indenture. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Interest may, at the option of the Company, be paid by check
mailed to the registered address of such person.
[If an exchange offer registered under the Securities Act of 1933 (as defined
in the Indenture) is not consummated, or a registration statement under the
Securities Act of 1933 with respect to resales of the Notes is not declared
effective by the SEC (as defined in the Indenture), by the 180th calendar day
following the initial sale of the Notes, in accordance with the terms of a
Registration Rights Agreement dated December 13, 1995 by and among the Company,
Xxxxxx Xxxxxxx & Co. Incorporated and Lazard Freres & Co. LLC, interest due per
annum on the Notes shall be increased by one-half of one percent, commencing as
of the 181st calendar day following the initial sale of the Notes, until the
date such exchange offer is consummated or the date such resale registration
statement becomes effective. The holder of this Note is entitled to the
benefits of such Registration Rights Agreement.]/*/
Reference is made to the further provisions of this Note set forth on the
reverse side hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
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/*/ To be deleted in Exchange Notes.
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This Note shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with and
governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture.
IN WITNESS WHEREOF, CONTINENTAL CABLEVISION, INC. has caused this instrument
to be duly executed.
CONTINENTAL CABLEVISION, INC.
By____________________________
[Title]
Attest:
_____________________
[Title]
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
Dated:
BANK OF MONTREAL TRUST COMPANY
as Trustee
By__________________________
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
CONTINENTAL CABLEVISION, INC.
8.30% Senior Note Due 2006
1. This Note is one of a duly authorized issue of Notes of the Company,
designated as its 8.30% Senior Notes Due 2006 (herein called the "Notes"),
limited (except as otherwise provided in the Indenture mentioned below) to the
aggregate principal amount of $600,000,000, all issued or to be issued under and
pursuant to an Indenture dated as of December 13, 1995 (herein called the
"Indenture"), duly executed and delivered in the Borough of Manhattan, The City
of New York, the State of New York, by the Company to Bank of Montreal Trust
Company, Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes.
2. In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
3. The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in aggregate principal amount of
the Notes at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Notes; provided, however, that no such supplemental indenture shall (i)
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extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or make the principal thereof or any premium or interest
thereon payable in any coin or currency other than that hereinbefore provided
without the consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all Notes
then outstanding. It is also provided in the Indenture that, prior to any
declaration accelerating the maturity of the Notes, the holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of
the holders of all of the Notes waive any past default or Event of Default under
-5-
the Indenture and its consequences except a default in the payment of interest
or any premium on or the principal of any of the Notes. Any such consent or
waiver by the holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such holder and upon all future holders and
owners of this Note and any Notes which may be issued in exchange or
substitution therefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
4. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
5. The Notes are issuable in registered form without coupons in denominations
of $100,000 and any multiple of $50,000 in excess thereof. At the office or
agency of the Company in the Borough of Manhattan, The City of New York and in
the manner and subject to the limitations provided in the Indenture, but without
payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
6. The Notes shall not be redeemable at the option of the Company.
7. If the Company proposes to make certain cash redemptions (a "Preferred
Stock Redemption Payment", as defined in the Indenture) with respect to its 1992
Preferred Stock (as defined in the Indenture) in connection with a Preferred
Stock Change of Control Event (as defined in the Indenture), the Company shall
mail notice thereof (the "Preferred Event Put Notice", as defined in the
Indenture) to each holder of Notes at his or her last registered address at
least 31 and no more than 60 days before the proposed date of such Preferred
Stock Redemption Payment. For 30 days from the date of the Preferred Event Put
Notice, or such longer period as the Company may elect by written notice to the
holders of the Notes (the "Tender Period", as defined in the Indenture), each
holder of the Notes shall have the right to tender all, but not less than all,
his or her Notes to the Company and thereby require the Company to prepay, on
the date (if any) of the Preferred Stock Redemption Payment (which shall be (i)
at least 31 and no more than 60 days after the date of the Preferred Event Put
Notice and (ii) no more than five days after the last day of the Tender Period),
all, but not less than all, of such holder's Notes at the principal amount
thereof together with accrued interest to the date fixed for prepayment. Such
date shall be the same as the date on which the Company repurchases any 2001
Notes, 2005 Debentures, 0000
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Xxxxxxxxxx or June Senior Debt Securities (as such terms are defined in the
Indenture) as a result of a Preferred Stock Redemption Payment. If the proposed
Preferred Stock Redemption Payment is not made on or prior to the earlier to
occur of (i) the 60th day after the date of the Preferred Event Put Notice with
respect thereto or (ii) the fifth day after the last day of the Tender Period,
the Company shall no longer have the right or obligation to prepay Notes
tendered in connection with, and as a result of, such proposed Preferred Stock
Redemption Payment and the Company shall cause the Notes tendered by each holder
to be returned to such holder. The Company shall not thereafter make a
Preferred Stock Redemption Payment unless a subsequent Preferred Event Put
Notice has been sent to the holders of the Notes in connection therewith. If
the Company has previously satisfied and discharged the Indenture or has
previously effected a defeasance with respect to the Notes, the right of a
holder to require such a prepayment shall expire.
8. If the Company proposes to make certain repurchases with respect to the
Common Stock (as defined in the Indenture) or certain borrowings, and
immediately after any such repurchase or borrowing (and related transactions)
the aggregate Indebtedness (as so defined) of the Note Restricted Group (as
defined in the Indenture) would exceed certain specified levels (each a "Put
Option Transaction", as defined in the Indenture), the Company shall mail notice
thereof to each holder of the Notes at his or her last registered address not
less than 15 days nor more than 45 days before the proposed date of such Put
Option Transaction. On the date the Put Option Transaction takes place (which
shall be no more than 30 days after the date proposed in the initial notice
provided by the Company), the Company shall mail notice thereof to each holder
of the Notes at his or her last registered address. For 30 days from the date
of such notice, each holder of the Notes shall have the right to tender his or
her Notes to the Company and thereby require the Company to prepay all, but not
less than all, of such holder's Notes at a price equal to the principal amount
of such Notes plus accrued interest thereon to the date fixed for prepayment
(which shall be 35 days from the date on which the Put Option Transaction takes
place), plus a premium (expressed as a percentage of the principal amount
prepaid) determined as follows:
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If prepaid during the 18-month period ending May 14, 1997 or during the
subsequent 12-month periods, each ending May 14,
Year Premium Year Premium
---- ------- ---- -------
1997 8.3000% 2002 3.1125%
1998 7.2625% 2003 2.0750%
1999 6.2250% 2004 1.0375%
2000 5.1875% 2005 and thereafter -0-
2001 4.1500%
Following the consummation of a Put Option Transaction and the repurchase of
those Notes, if any, properly tendered for repurchase, (i) holders of Notes will
have no further right to cause the Company to prepay their Notes as a result of
any subsequent Put Option Transaction and (ii) the Company will no longer be
bound by certain covenants as set forth in the Indenture. If the Company has
previously satisfied and discharged the Indenture or has previously effected a
defeasance with respect to the Notes, the right of a holder to request such a
prepayment shall expire.
9. Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
10. The Company, the Trustee, any paying agent and any Note registrar may
deem and treat the registered holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon) for the purpose of receiving payment hereof,
or on account hereof and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Note registrar shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Note.
11. No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note,
-8-
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
______________
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ASSIGNMENT FORM
For value received __________________________________________
hereby sell, assign and transfer unto
--------------------------------
--------------------------------
Please insert social security or
other identifying number of assignee
Please print or typewrite name
and address including zip code
of assignee:
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the within Note and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer the Note on the books of the Company with
full power of substitution in the premises.
Date:________________ Your Signature:______________________
(Sign exactly as
name appears on the
other side of this
Note)
Signature Guarantee:__________________________________________
(Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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[MANNER OF TRANSFER
Transfer to Continental Cablevision, Inc. [ ]
Transfer to Qualified Institutional Buyer [ ]
Transfer to Institutional Accredited Investor [ ]
Transfer outside the United States in
compliance with Rule 904 under
the Securities Act of 1933 [ ]
______________]/*/
OPTION OF HOLDER TO ELECT PREPAYMENT
If you want to elect to have this Note prepaid in its entirety by the Company
pursuant to Section 3.02 or 3.03 of the Indenture, check the box:
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Dated: Your Signature:___________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:__________________________________________
(Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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/*/ To be deleted in the Exchange Notes.
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AND WHEREAS all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee, as in this Indenture
provided, and issued, valid, binding and legal obligations of the Company, and
to constitute these presents a valid agreement according to its terms, have been
done and performed, and the execution of this Indenture and the issue hereunder
of the Notes have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises, of the purchase and acceptance of the Notes by the holders thereof and
of the sum of one dollar duly paid to it by the Trustee at the execution of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective holders from time to time of the Notes (except as otherwise
provided below), as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except as
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herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act of 1933 as in force at the date of the
execution of this Indenture; provided that with respect to the Registration of
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the Notes, the Securities Act of 1933 shall mean said Securities Act of 1933 as
in force at the relevant time of Registration.
Acceleration Notice: The term "Acceleration Notice" shall have the meaning
-------------------
specified in Section 6.01.
Accreted Value: The term "Accreted Value", for each share of 1992 Preferred
--------------
Stock, as of any date, shall mean the sum of $350 and an amount calculated to
provide the holder of a share of 1992 Preferred Stock, as of such date, with a
yield of eight percent thereon, compounded semi-annually in arrears, from the
-12-
date issued to and including such date, provided that such Accreted Value shall
be reduced by the fair market value at such date of any dividends or
distributions which have been previously paid on such share of 1992 Preferred
Stock, assuming the same eight percent per annum yield from the date of payment
of such dividend or distribution and compounded on the same basis. The fair
market value of any non-cash dividend or distribution shall be (a) in the case
of any securities, the current market price of such securities (determined in
accordance with the terms of the Company's Certificate of Incorporation); and
(b) in the case of any other property, the fair market value of such property on
a fully-distributed basis as determined at the time of such distribution by
investment bankers mutually agreeable to the Company and the holders of a
majority of the voting power represented by the outstanding shares of 1992
Preferred Stock.
Affiliate: The term "Affiliate" shall mean, as to any Person, any other
---------
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
Annualized Cash Flow: The term "Annualized Cash Flow" shall mean Operating
--------------------
Cash Flow for the latest fiscal quarter for which financial statements are
available multiplied by four.
Banking Day: The term "Banking Day" shall mean any day other than a day on
-----------
which commercial banks are required to close in the Borough of Manhattan, The
City of New York.
Board of Directors: The term "Board of Directors" shall mean the Board of
------------------
Directors of the Company, or the Executive Committee thereof, as from time to
time constituted, or any other committee of such Board duly authorized to act
for it in respect of matters pertaining to this Indenture.
Capital Stock: The term "Capital Stock" shall mean, with respect to any
-------------
Person, any and all shares, interests, participations or other equivalents
(however designated) of such Person's capital stock whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
Common Stock and 1992 Preferred Stock.
Common Stock: The term "Common Stock" shall mean the Common Stock of the
------------
Company, whether now outstanding or issued
-13-
after the date of this Indenture, including, without limitation, all series and
classes of such Common Stock.
Company: The term "Company" shall mean Continental Cablevision, Inc., a
-------
Delaware corporation, and subject to the provisions of Article Eleven, shall
include its successors and assigns.
Defaulted Interest: The term "Defaulted Interest" shall have the meaning
------------------
specified in Section 2.04.
Depositary: The term "Depositary" shall mean The Depository Trust Company,
----------
its nominees, and their respective successors.
Event of Default: The term "Event of Default" shall mean any event specified
----------------
in Section 6.01, continued for the period of time, if any, and after the giving
of the notice, if any, therein designated.
Exchange Notes: The term "Exchange Notes" shall mean 8.30% Senior Notes Due
--------------
2006 issued by the Company, and containing terms identical to those of the Notes
(except that such Exchange Notes (i) shall have been issued in an exchange offer
registered under the Securities Act of 1933 and (ii) shall have an interest rate
of 8.30% per annum, without provision for adjustment as provided on the face of
the Notes), that are issued and exchanged for the Notes pursuant to the
Registration Rights Agreement and this Indenture.
Exempt Repurchase Indebtedness: The term "Exempt Repurchase Indebtedness"
------------------------------
shall mean Indebtedness or any portion thereof specifically incurred or to be
incurred (in either instance, within 75 days of the Exempt Repurchase to which
it relates) for the purpose of making an Exempt Repurchase, or a refinancing
thereof.
Exempt Repurchase: The term "Exempt Repurchase" shall mean the repurchase by
-----------------
the Company at any time or from time to time of up to 16,684,150 shares of its
Common Stock that are subject to the 1998-1999 Share Repurchase Program,
provided that the Company shall have received prior to any such Exempt
--------
Repurchase of Common Stock an opinion of an investment banker knowledgeable in
the communications industry (who may be the Company's investment banker) that
the price per share of Common Stock paid pursuant to any such Exempt Repurchase
does not exceed the greater of (A) the dollar amount that a holder of Common
Stock would then receive per share of Common Stock upon a sale of the Company as
a whole pursuant to a merger or sale of stock or, if greater, the dollar amount
that a holder of Common Stock would then receive per share of Common Stock
derived from the sale of
-14-
the Company's assets and subsequent distribution of the proceeds therefrom (net
of taxes, including corporate, sales and capital gain taxes in connection with
such sale of assets), in each case less a discount of 22.5 percent or (B) the
net proceeds which would be expected to be received by a shareholder of the
Company from the sale of a share of the Company's Common Stock in an
underwritten public offering held at the time any such Exempt Repurchase is to
occur after being reduced by pro forma expenses and underwriting discounts
unless the Common Stock is publicly traded and such expenses and underwriting
discounts would not be incurred in connection with an underwritten public sale
of a shareholder's non-registered shares in the opinion of the investment
banker; provided, further, that no such opinion of an investment banker shall be
-------- -------
required for repurchases of shares of Common Stock which are subject to the
1998-1999 Share Repurchase Program to the extent that the aggregate purchase
price paid therefor in any calendar year does not exceed $10,000,000.
GAAP: The term "GAAP" shall mean generally accepted accounting principles in
----
the United States as in effect as of the date of this Indenture, including,
without limitation, those 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 approved by
a significant segment of the accounting profession.
Global Notes: The term "Global Notes" shall have the meaning specified in
------------
Section 2.02.
Indebtedness: The term "Indebtedness" shall mean (without duplication), with
------------
respect to any Person, any indebtedness, contingent or otherwise, in respect of
borrowed money (whether or not the recourse of the lender is to the whole
of the assets of such Person or only to a portion thereof), or evidenced by
bonds, notes, debentures or similar instruments or representing the balance
deferred and unpaid of the purchase price of any property (excluding any
balances that constitute subscriber advance payments and deposits, accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course) if and to the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared in accordance with
generally accepted accounting principles, and shall also include, to the extent
not otherwise included, the maximum fixed repurchase price of any equity
securities or other similar interests of such Person which by their terms or
otherwise are required to be redeemed prior to the maturity of the Notes or at
the option of the holder thereof, obligations secured by a Lien to which the
property or assets owned or held by such Person is subject, whether or not the
-15-
obligation or obligations secured thereby shall have been assumed, all
obligations to reimburse any bank or other Person in respect of amounts paid
under letters of credit, acceptances or other similar instruments, and
guaranties of any of the above items (whether or not such items would appear
upon such balance sheet). The term "Indebtedness" shall not include (i) any
Interest Rate Agreement, however denominated, of the Company or any of its
Subsidiaries, (ii) as to the Note Restricted Group, any indebtedness of any
Subsidiary which is non-recourse to the Note Restricted Group or any pledge of
the stock of any such Subsidiary to secure such indebtedness, (iii) as to the
Note Restricted Group, Indebtedness of a Subsidiary that is part of the Note
Restricted Group to the Company or another Subsidiary that is part of the Note
Restricted Group, and Indebtedness of the Company to a Subsidiary that is part
of the Note Restricted Group, (iv) any obligation of the Company to redeem, or
to pay dividends on, its outstanding 1992 Preferred Stock, (v) any obligation of
the Company to repurchase shares of its outstanding Common Stock pursuant to the
1998-1999 Share Repurchase Program, or (vi) any equity securities or other
similar interests which, at the option of the Company or otherwise, are
redeemable into shares of Capital Stock of the Company.
Indenture: The term "Indenture" shall mean this instrument as originally
---------
executed or as it may be amended or supplemented from time to time by one or
more indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture.
Initial Tender Period: The term "Initial Tender Period" shall have the
---------------------
meaning specified in Section 3.02(a).
Institutional Accredited Investor: The term "Institutional Accredited
---------------------------------
Investor" shall mean an institution that is an "accredited investor" as that
term is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933.
Interest Rate Agreement: The term "Interest Rate Agreement" shall mean any
-----------------------
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement designed to protect the party indicated
therein against fluctuations in interest rates.
Investment Grade Rated: The term "Investment Grade Rated" shall mean, with
----------------------
respect to any security, both a rating of such security by Standard & Poor's
Ratings Group (or successor entity) of BBB- or better and a rating of such
security by Xxxxx'x Investors Service (or successor entity) of Baa3 or better.
-16-
June Senior Debt Securities: The term "June Senior Debt Securities" shall
---------------------------
mean the 8-5/8% Senior Notes Due August 15, 2003 of the Company issued pursuant
to an indenture dated as of June 1, 1993 between the Company and The First
National Bank of Chicago, as trustee, and the 9% Senior Debentures Due September
1, 2008 of the Company issued pursuant to an indenture dated as of June 1, 1993
between the Company and The First National Bank of Chicago, as trustee.
Lien: The term "Lien" shall mean, as to the Note Restricted Group and as used
----
in the definition of "Indebtedness", any mortgage, pledge, lien or security
interest except for (i) pledges of the stock of any Subsidiaries that are not
part of the Note Restricted Group to secure Indebtedness; (ii) Liens for taxes,
assessments or governmental charges or claims the payment of which is being
contested in good faith by appropriate proceedings and with respect to which the
Company or a Subsidiary that is part of the Note Restricted Group shall have
created adequate reserves on its books; (iii) Liens of mechanics, carriers,
warehousemen or materialmen arising in the ordinary course of business in
respect of obligations which are not overdue or which are being contested in
good faith; (iv) Liens resulting from deposits or pledges made in the ordinary
course of business to secure payment of workers' compensation, unemployment
insurance, old age pension or other social security, or in connection with, or
to secure the performance of, bids, tenders or contracts made in the ordinary
course of business, or to secure statutory obligations or surety, performance or
appeal bonds; (v) Liens in respect of judgments or awards the payment of which
is being contested in good faith by appropriate proceedings and with respect to
which the Note Restricted Group shall have created adequate reserves on its
books; (vi) purchase money security interests (including mortgages, any
conditional sale or other title retention agreement and any capitalized lease);
provided, however, that the principal amount of Indebtedness secured by each
-------- -------
such security interest in each such item (or group of items) of property shall
not exceed the cost of the item (or group of items) subject thereto and each
such security interest shall attach only to the particular item (or group of
items) so acquired and any additions or accessions thereto; (vii) landlord's or
lessor's Liens under leases to which any member of the Note Restricted Group is
a party; and (viii) Liens of utilities and other persons pursuant to pole
attachment agreements, and restrictions on the transfer of rights under
franchises or pole attachment agreements, and any encumbrances created in favor
of franchising authorities and subscribers by provisions of franchises on cable
television plant and equipment located in the areas covered thereby.
New Borrowing Group: The term "New Borrowing Group" shall mean those certain
-------------------
Subsidiaries of the Company that are
-17-
parties to the 1995 Credit Facility, whether as borrowers or as guarantors.
1998-1999 Share Repurchase Program: The term "1998-1999 Share Repurchase
----------------------------------
Program" shall mean the Common Stock repurchase program of the Company under the
Stock Liquidation Agreement under which the Company will offer to purchase, and
certain shareholders of the Company will sell to the Company, on December 15,
1998 (or January 15, 1999, at the election of each such shareholder), at a price
established pursuant to a specified formula, up to 16,684,150 shares of Common
Stock.
1995 Credit Facility: The term "1995 Credit Facility" shall mean that certain
--------------------
Credit Agreement dated as of July 18, 1995, among Colony Communications, Inc., a
Rhode Island corporation, Columbia Cable of Michigan, Inc., a Delaware
corporation, and each of their respective Subsidiaries and certain financial
institutions, as amended from time to time.
1994 Credit Facility: The term "1994 Credit Facility" shall mean that certain
--------------------
Amended and Restated Credit Agreement dated as of October 1, 1994, among the
Company, the Restricted Subsidiaries and certain financial institutions, as
amended from time to time.
1992 Preferred Stock: The term "1992 Preferred Stock" shall mean the Series A
--------------------
Participating Convertible Preferred Stock, $.01 par value per share, of the
Company.
Non-U.S. Person: The term "Non-U.S. Person" shall mean a person who is not a
---------------
U.S. person, as defined in Regulation S.
Note or Notes; Outstanding. The terms "Note" or "Notes" shall mean any Note
--------------------------
or Notes, as the case may be, authenticated and delivered under this Indenture.
For all purposes of this Indenture, the term "Notes" shall include any Exchange
Notes to be issued and exchanged for any Notes pursuant to the Registration
Rights Agreement and this Indenture and, for purposes of this Indenture, all
Notes and Exchange Notes shall vote together as one series of Notes under this
Indenture.
The term "outstanding", when used with reference to Notes, shall, subject to
the provisions of Section 8.04, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Notes, or portions thereof, for the payment or prepayment of which monies
in the necessary amount shall have
-18-
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent), provided that, if such Notes
are to be prepaid prior to the maturity thereof, notice of such prepayment shall
have been given as in Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Notes replaced pursuant to Section 2.09 or in lieu of or in substitution
for which other Notes shall have been authenticated and delivered pursuant to
the terms of Section 2.09 unless proof satisfactory to the Trustee is presented
that any such Notes are held by bona fide holders in whose hands the Notes are
valid obligations of the Company.
Noteholder: The terms "Noteholder" or "holder of Notes", or other similar
----------
terms, shall mean any person in whose name at the time a particular Note is
registered on the books of the Company kept for that purpose in accordance with
the terms hereof.
Note Restricted Group: The term "Note Restricted Group" shall mean the
---------------------
Company and (i) any Subsidiary that is a member of the New Borrowing Group and
any other Subsidiary of the Company, whether existing on or after the date of
this Indenture, which has been designated a Restricted Subsidiary for purposes
of the Company's 1994 Credit Facility, unless any such Subsidiary is
subsequently classified as a Subsidiary that is not part of the Note Restricted
Group by the Company for purposes of this Indenture, as evidenced by an
Officers' Certificate delivered to the Trustee, and (ii) any Subsidiary which is
classified as a member of the Note Restricted Group for purposes of this
Indenture by the Company, as evidenced by an Officers' Certificate delivered to
the Trustee. The Company may not classify a Subsidiary as not part of the Note
Restricted Group for purposes of this Indenture if such Subsidiary is classified
as a Restricted Subsidiary for purposes of the 1994 Credit Facility or any
similar, successor agreements.
Officers' Certificate: The term "Officers' Certificate", when used with
---------------------
respect to the Company, shall mean a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or any Vice President and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company. Each such certificate shall include the statements provided for in
Section 15.05 if and to the extent required by the provisions of such Section.
-19-
Offshore Global Note: The term "Offshore Global Note" shall have the meaning
--------------------
provided in Section 2.02.
Offshore Notes Exchange Date: The term "Offshore Notes Exchange Date" shall
----------------------------
have the meaning provided in Section 2.02.
Offshore Physical Notes: The term "Offshore Physical Notes" shall have the
-----------------------
meaning provided in Section 2.02.
Operating Cash Flow: The term "Operating Cash Flow" shall mean, for any
-------------------
period, an amount equal to (i) aggregate operating revenues plus interest and
ordinary dividend income minus (ii) aggregate operating expenses, excluding
therefrom non-operating expenses such as interest expense, depreciation and
amortization, non-cash amounts and taxes on income, of the Note Restricted Group
for such period, determined on a consolidated basis, after eliminating all
inter-company items, in accordance with generally accepted accounting principles
consistently applied. For purposes of calculating Operating Cash Flow, there
shall be included in the Operating Cash Flow of the Note Restricted Group for
any fiscal quarter for which Operating Cash Flow is being calculated the
Operating Cash Flow for such fiscal period of any Subsidiary which has been
designated a Subsidiary that is part of the Note Restricted Group or of any
operating assets acquired by the Company or a Subsidiary that is part of the
Note Restricted Group (including assets constituting a cable television system
acquired by the Company or a Subsidiary that is part of the Note Restricted
Group) after the commencement of such fiscal period. If the actual financial
statements of any such new Subsidiary to the Note Restricted Group or new
operating assets for any fiscal period or portion thereof prior to the inclusion
of such Subsidiary as part of the Note Restricted Group or the acquisition of
such operating assets by the Company or a Subsidiary that is part of the Note
Restricted Group are unavailable or inaccurate in the reasonable opinion of the
Company, then the Operating Cash Flow of such new Subsidiary to the Note
Restricted Group or new operating assets may be determined from pro forma
financial statements of such new Subsidiary to the Note Restricted Group or new
operating assets for such period as prepared in good faith by the Company,
provided, however, that not more than $10,000,000 of Operating Cash Flow
-------- -------
determined on an annualized basis from such pro forma financial statements shall
be included in the Operating Cash Flow of the Note Restricted Group. For
purposes of calculating Operating Cash Flow, there will not be included in the
Operating Cash Flow of the Note Restricted Group for any fiscal quarter for
which Operating Cash Flow is being calculated the Operating Cash Flow for such
fiscal period of any Subsidiary that is part of the Note Restricted Group which
has been designated an Unrestricted Subsidiary after the commencement of such
fiscal period or of operating assets (including assets constituting a cable
-20-
television system) owned by the Company or a Subsidiary that is part of the Note
Restricted Group which have been transferred to an Unrestricted Subsidiary or
any third party after the commencement of such fiscal period.
Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in
------------------
writing signed by legal counsel, who may be an employee of or counsel to the
Company or other counsel reasonably acceptable to the Trustee. Each such
opinion shall include the statements provided for in Section 15.05 if and to the
extent required by the provisions of such Section.
Permanent Offshore Global Note: The term "Permanent Offshore Global Note"
------------------------------
shall have the meaning provided in Section 2.02.
Person: The term "Person" shall mean a corporation, an association, a
------
partnership, an organization, an individual, a government or a political
subdivision thereof or a governmental agency.
Physical Notes: The term "Physical Notes" shall have the meaning provided in
--------------
Section 2.02.
Pre-Acceleration Notice: The term "Pre-Acceleration Notice" shall have the
-----------------------
meaning specified in Section 6.01.
Predecessor Note: The term "Predecessor Note" of any particular Note shall
----------------
mean every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 2.09 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note, and any Exchange Note issued in exchange for a Note in
connection with an effective Registration pursuant to the Registration Rights
Agreement shall be deemed to evidence the same debt as such Note.
Preferred Event Put Notice: The term "Preferred Event Put Notice" shall have
--------------------------
the meaning set forth in Section 3.02(c).
Preferred Event Redemption Date: The term "Preferred Event Redemption Date"
-------------------------------
shall have the meaning specified in Section 3.02(b).
Preferred Event Redemption Price: The term "Preferred Event Redemption Price"
--------------------------------
shall have the meaning specified in Section 3.02(a).
Preferred Stock Change of Control Event: The term "Preferred Stock Change of
---------------------------------------
Control Event" shall mean the right of
-21-
holders of 1992 Preferred Stock, pursuant to the terms of the Company's
Certificate of Incorporation, to cause the Company to redeem any of their shares
of 1992 Preferred Stock at the then Accreted Value, payable, at the Company's
sole option, in cash or in shares of Common Stock (based on a value of 90
percent of the Common Stock's then-current market value (as determined in
accordance with the terms of the Company's Certificate of Incorporation)) if (i)
there is (subject to certain exceptions) an acquisition by any person or group
of 50 percent or more of the combined voting or economic power of the then
outstanding voting securities of the Company, including pursuant to a
reorganization, consolidation or merger, or a sale of all or substantially all
of the Company's assets and (ii) at the time of any such event, the value of the
Common Stock issuable upon conversion of a share of 1992 Preferred Stock is less
than the then Accreted Value of such share of 1992 Preferred Stock.
Preferred Stock Redemption Payment: The term "Preferred Stock Redemption
----------------------------------
Payment" shall mean the redemption by the Company of shares of the 1992
Preferred Stock, for an aggregate cash redemption price exceeding 25 percent of
the Accreted Value as of the date of redemption of all outstanding shares of the
1992 Preferred Stock, in response to the exercise by holders of the 1992
Preferred Stock of their right to cause the Company to redeem any of their
shares upon the occurrence of a Preferred Stock Change of Control Event.
Principal Office of the Trustee: The term "Principal Office of the Trustee",
-------------------------------
or other similar term, shall mean the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered.
Principal Property: The term "Principal Property" shall mean, as of any date
------------------
of determination, any property or assets owned by any Subsidiary that is part of
the Note Restricted Group other than (1) any such property which, in the good
faith opinion of the Board of Directors, is not of material importance to the
business conducted by the Note Restricted Group taken as a whole and (2) any
shares of any class of stock or any other security of any Subsidiary that is not
part of the Note Restricted Group.
Private Placement Legend: The term "Private Placement Legend" shall mean the
------------------------
legend initially set forth on the Notes in the form set forth in Section 2.03.
Proposed Date: The term "Proposed Date" shall have the meaning set forth in
-------------
Section 3.03(c).
Put Option Borrowing: The term "Put Option Borrowing" shall have the meaning
--------------------
specified in Section 3.03(b)(ii).
-22-
Put Option Redemption Date: The term "Put Option Redemption Date" shall have
--------------------------
the meaning specified in Section 3.03(a).
Put Option Redemption Price: The term "Put Option Redemption Price" shall
---------------------------
have the meaning specified in Section 3.03(a).
Put Option Stock Repurchase: The term "Put Option Stock Repurchase" shall
---------------------------
have the meaning specified in Section 3.03(b)(i).
Put Option Transaction: The term "Put Option Transaction" shall have the
----------------------
meaning set forth in Section 3.03(c).
Put Option Transaction Date: The term "Put Option Transaction Date" shall
---------------------------
have the meaning specified in Section 3.03(d).
QIB: The term "QIB" shall mean a "qualified institutional buyer" as defined
---
in Rule 144A.
Registration: The term "Registration" shall have the meaning provided in
------------
Section 5.02.
Registration Rights Agreement: The term "Registration Rights Agreement" shall
-----------------------------
mean the Registration Rights Agreement, dated as of December 13, 1995, by and
among the Company, Xxxxxx Xxxxxxx & Co. Incorporated and Lazard Freres & Co.
LLC.
Registration Statement: The term "Registration Statement" shall mean the
----------------------
Registration Statement as defined and described in the Registration Rights
Agreement.
Regulation S: The term "Regulation S" shall mean Regulation S under the
------------
Securities Act of 1933.
Responsible Officer: The term "Responsible Officer", when used with respect
-------------------
to the Trustee, shall mean any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters and shall include any officer in its
corporate trust department.
Restricted Payments: The term "Restricted Payments" shall have the meaning
-------------------
specified in Section 4.06. Restricted Payments shall not include any Exempt
Repurchases.
Restricted Stock Purchase Agreement: The term "Restricted Stock Purchase
-----------------------------------
Agreement" shall mean an agreement between the Company and an employee selected
by the Board of
-23-
Directors pursuant to which that employee may purchase shares of Common Stock.
Rule 144A: The term "Rule 144A" shall mean Rule 144A under the Securities Act
---------
of 1933.
SEC: The term "SEC" shall mean the Securities and Exchange Commission.
---
Securities Act of 1933: The term "Securities Act of 1933" shall mean the
----------------------
Securities Act of 1933, as amended, as the same may be hereafter amended.
Senior Subordinated Debt: The term "Senior Subordinated Debt" shall mean the
------------------------
10-5/8% Senior Subordinated Notes of the Company Due June 15, 2002, the Senior
Subordinated Floating Rate Debentures Due November 1, 2004 and the 11% Senior
Subordinated Debentures Due June 1, 2007.
Stock Liquidation Agreement: The term "Stock Liquidation Agreement" shall
---------------------------
mean that certain Stock Liquidation Agreement dated March 6, 1989, as amended,
among the Company and certain holders of the Common Stock of the Company.
Subsidiary: The term "Subsidiary" shall mean (i) any corporation of which the
----------
outstanding stock having at least a majority in voting power in the election of
directors under ordinary circumstances shall at the time be owned, directly or
indirectly, by the Company or by the Company and one or more Subsidiaries or by
one or more Subsidiaries or (ii) any other Person of which at least a majority
in voting interest, under ordinary circumstances, is at the time, directly or
indirectly, owned or controlled by the Company or by the Company and one or more
Subsidiaries or by one or more Subsidiaries. A partnership of which the Company
or any Subsidiary is the managing general partner shall be deemed to be a
Subsidiary.
Temporary Offshore Global Note: The term "Temporary Offshore Global Note"
------------------------------
shall have the meaning provided in Section 2.02.
Tender Discharge Date: The term "Tender Discharge Date" shall have the
---------------------
meaning specified in Section 3.02(b).
Tender Period: The term "Tender Period" shall have the meaning specified in
-------------
Section 3.02(a).
Total Interest Expense: The term "Total Interest Expense" shall mean, for any
----------------------
period, the aggregate amount of interest in respect of Indebtedness (including
amortization of original issue discount on any Indebtedness and the interest
-24-
portion of any deferred payment obligation and after taking into account the
effect of any Interest Rate Agreement, however denominated, with respect to such
Indebtedness) and all but the principal component of rentals in respect of
capital lease obligations, paid, accrued or scheduled to be paid or accrued by
the Note Restricted Group during such period, determined on a consolidated
basis, after eliminating all intercompany items, in accordance with generally
accepted accounting principles; provided that such amounts paid, accrued and
--------
scheduled to be paid or accrued by any Person which is not a Subsidiary but the
accounts of which are consolidated with those of the Company shall be deducted
therefrom. For purposes of this definition, interest on a capital lease
obligation shall be deemed to accrue at an interest rate reasonably determined
by the Company to be the rate of interest implicit in such capital lease
obligation in accordance with generally accepted accounting principles.
Trustee: The term "Trustee" shall mean Bank of Montreal Trust Company and,
-------
subject to the provisions of Article Seven hereof, shall also include its
successors and assigns as Trustee hereunder.
Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939" shall
---------------------------
mean the Trust Indenture Act of 1939 as it was in force at the date of execution
of this Indenture, except as provided in Section 10.03.
2005 Debentures: The term "2005 Debentures" shall mean the 8-7/8% Senior
---------------
Debentures of the Company Due September 15, 2005.
2001 Notes: The term "2001 Notes" shall mean the 8-1/2% Senior Notes of the
----------
Company Due September 15, 2001.
2013 Debentures: The term "2013 Debentures" shall mean the 9-1/2% Senior
---------------
Debentures of the Company Due August 1, 2013.
Unrestricted Subsidiary: The term "Unrestricted Subsidiary" shall mean any
-----------------------
Subsidiary of the Company, whether existing on or after the date of this
Indenture, which is not a member of the Note Restricted Group.
U.S. Global Note: The term "U.S. Global Note" shall have the meaning provided
----------------
in Section 2.02.
U.S. Government Obligations: The term "U.S. Government Obligations" shall
---------------------------
mean direct obligations of, or obligations the timely payment of the principal
of and interest on which are unconditionally guaranteed by, the United States of
America.
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U.S. Physical Notes: The term "U.S. Physical Notes" shall have the meaning
-------------------
provided in Section 2.02.
Vice President: The term "Vice President" shall mean any vice president of
--------------
the Company, whether or not designated by a number or a word or words added
before or after the title "vice president".
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
SECTION 2.01. Designation, Amount and Issue of Notes. The Notes shall be
--------------------------------------
designated as "8.30% Senior Notes Due 2006". Notes not to exceed the aggregate
principal amount of $600,000,000 (except as provided in Section 2.09) upon the
execution of this Indenture, or from time to time thereafter, may be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes to or upon the written order
of the Company, signed by its Chairman or Vice Chairman of the Board of
Directors or its Chief Executive Officer or its President or its Chief Financial
Officer or any Vice President and by its Treasurer or Assistant Treasurer or its
Secretary or any Assistant Secretary, without any further action by the Company
hereunder.
The Notes shall be senior in right of payment to all subordinated indebtedness
of the Company, including, without limitation, the Senior Subordinated Debt.
SECTION 2.02. Form of Notes. The Notes and the Trustee's certificate of
-------------
authentication to be borne by the Notes shall be substantially in the form as in
this Indenture above recited. Any of the Notes may have imprinted thereon such
legends or endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Notes may be listed,
or to conform to usage.
Notes offered and sold in reliance on Rule 144A shall be issued initially in
the form of one or more permanent global Notes in registered form, substantially
in the form as above recited (the "U.S. Global Note"), deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
-26-
aggregate principal amount of the U.S. Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of one or more temporary global Notes in
registered form substantially in the form as above recited (the "Temporary
Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. At any time beginning 40 days after the later of the
commencement of the offering and the closing in connection with the Notes (the
"Offshore Notes Exchange Date"), upon receipt by the Trustee and the Company of
a certificate substantially in the form of Exhibit A hereto, one or more
permanent global Notes in registered form substantially in the form as above
recited (the "Permanent Offshore Global Note" and, together with the Temporary
Offshore Global Note, the "Offshore Global Note") duly executed by the Company
and authenticated by the Trustee as hereinafter provided shall be deposited with
the Trustee, as custodian for the Depositary, and the registrar shall reflect on
its books and records the date and a decrease in the principal amount of the
Temporary Offshore Global Note in an amount equal to the principal amount of the
beneficial interest in the Temporary Offshore Global Note transferred.
Notes offered and sold in reliance on Regulation D under the Securities Act of
1933 shall be issued in the form of permanent certificated Notes in registered
form in substantially the form as above recited (the "U.S. Physical Notes").
Notes issued pursuant to Section 2.07 in exchange for interests in the Offshore
Global Note shall be in the form of permanent certificated Notes in registered
form substantially in the form as above recited (the "Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes collectively
herein referred to as the "Physical Notes". The U.S. Global Note and the
Offshore Global Note are sometimes referred to as the "Global Notes".
The definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.03. Restrictive Legends. Unless and until a Note is exchanged for
-------------------
an Exchange Note in connection with an
-27-
effective Registration pursuant to the Registration Rights Agreement, the U.S.
Global Note, Temporary Offshore Global Note and each U.S. Physical Note shall
bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF
THIS NOTE OR THE LAST DATE ON WHICH THIS NOTE WAS HELD BY AN AFFILIATE OF THE
COMPANY, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF
TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE OR THE
LAST DATE ON WHICH THIS NOTE WAS HELD BY AN AFFILIATE OF THE COMPANY, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH HEREIN RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS NOTE TO THE TRUSTEE. IF
-28-
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall bear the following
legend on the face thereof:
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Transfers of this Note shall be limited to transfers in whole, but not in part,
to nominees of Cede & Co. or to a successor thereof or such successor's nominee
and transfers of portions of this Note shall be limited to transfers made in
accordance with the restrictions set forth in section 2.08 of the Indenture.
SECTION 2.04. Date and Denomination of Notes. The Notes shall be issuable in
------------------------------
registered form without coupons in denominations of $100,000 and any multiple of
$50,000 in excess thereof. Every Note shall be dated the date of its
authentication and, except as provided in this Section, shall bear interest,
payable semi-annually on May 15 and November 15 of each year, commencing on May
15, 1996, from the May 15 or November 15, as the case may be, next preceding the
date of such Note to which interest has been paid or duly provided for, unless
the date of such Note is the date to which interest has been paid or duly
provided for, in which case from the date of such Note, or unless no interest
has been paid or duly provided for on the Notes, in which case from December 13,
1995 until payment of the
-29-
principal sum has been made or duly provided for. Notwithstanding the foregoing,
when there is no existing default in the payment of interest on the Notes, all
Notes authenticated by the Trustee after the close of business on the record
date (as hereinafter defined) for any interest payment date (May 15 or November
15, as the case may be) and prior to such interest payment date shall be dated
the date of authentication but shall bear interest from such interest payment
date; provided, however, that if and to the extent that the Company shall
-------- -------
default in the payment of interest due on such interest payment date then any
such Note shall bear interest from the May 15 or November 15, as the case may
be, next preceding the date of such Note to which interest has been paid or duly
provided for, unless no interest has been paid or duly provided for on the
Notes, in which case from December 13, 1995. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The person in whose name any Note (or its Predecessor Note) is registered at
the close of business on any record date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date (subject to the provisions of Article Three in the case of any Note or
Notes, or portion thereof, prepaid on a date subsequent to the record date and
prior to such interest payment date) notwithstanding the cancellation of such
Note upon any transfer or exchange subsequent to the record date and prior to
such interest payment date. Interest may, at the option of the Company, be paid
by check mailed to the address of such person on the registry kept for such
purposes. The term "record date" with respect to any interest payment date
shall mean the May 1 or November 1 preceding said May 15 or November 15.
Any interest on any Note which is payable, but is not paid or duly provided
for within 30 days after the date on which it becomes due and payable on any
said May 15 or November 15 (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Noteholder on the relevant record date by virtue of
having been such Noteholder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. At least
45 days before the proposed payment date, the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
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aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon, not more than 15 days and not less than 10 days
after receipt by the Trustee of notice of the proposed payment, the Trustee
shall fix a special record date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid to each
Noteholder at his or her address as it appears in the Note register, not less
than 15 days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of
business on such special record date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.05. Execution of Notes. The Notes shall be signed in the name and
------------------
on behalf of the Company by the facsimile signature of its Chairman or Vice
Chairman of the Board of Directors, its Chief Executive Officer, its President,
its Chief Financial Officer or any of its Vice Presidents and attested by the
facsimile signature of its Secretary or any of its Assistant Secretaries (which
may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise). Only such Notes as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, manually executed
by the Trustee, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such authentication by the Trustee upon any Note
executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
-31-
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
SECTION 2.06. Exchange and Registration of Notes; Transfer of Notes. Notes
-----------------------------------------------------
may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations. Notes to be exchanged shall be surrendered at the
office or agency to be maintained by the Company in the Borough of Manhattan,
The City of New York (which office for purposes of this Section 2.06 shall be
the office of the registrar hereunder), and the Company shall execute and
register and the Trustee shall authenticate and deliver in exchange therefor the
Note or Notes which the Noteholder making the exchange shall be entitled to
receive. The Company hereby appoints the Trustee to be, and the Trustee agrees
to serve as, the initial registrar of the Notes.
The registrar (or the Company if there is no registrar) shall keep at said
office in the Borough of Manhattan, The City of New York, a register in which,
subject to such reasonable regulations as it may prescribe, Notes shall be
registered and the transfer of Notes shall be registered as in this Article Two
provided. Such register shall be in written form or in any other form capable
of being converted into written form within a reasonable time. At all
reasonable times such register shall be open for inspection by the Trustee.
Upon due presentment for registration of transfer of any Note at such office or
agency maintained by the Company in the Borough of Manhattan, The City of New
York, the Company shall execute and register and the Trustee shall authenticate
and deliver in the name of the transferee or transferees a new Note or Notes for
an equal aggregate principal amount. Furthermore, the Depositary shall, by
acceptance of a Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by
the Depositary (or its agent), and that ownership of a beneficial interest in
the Global Note shall be required to be reflected in a book entry. When Notes
are presented to the registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including on exchange of Notes for Exchange Notes), the registrar
shall register the transfer or make the exchange as requested if its
requirements
-32-
for such transactions are met; provided that no exchanges of Notes for Exchange
--------
Notes shall occur until a Registration Statement shall have been declared
effective by the SEC and that any Notes that are exchanged for Exchange Notes
shall be canceled by the Trustee; provided, further, that any Exchange Note
-------- -------
issued in exchange for a Physical Note shall upon such exchange be represented
by a Global Note. To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Company shall
execute and the Trustee shall authenticate Notes at the registrar's request.
All Notes presented for registration of transfer or for exchange, prepayment
or payment shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the registrar duly executed by, the holder or
his or her attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer
of Notes, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
SECTION 2.07. Book-Entry Provisions for U.S. Global Note and Offshore Global
--------------------------------------------------------------
Note. (a) The U.S. Global Note and Offshore Global Note initially shall (i) be
----
registered in the name of the Depositary for such Global Notes or the nominee of
such Depositary, (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth in Section 2.03.
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Indenture with respect to any U.S. Global Note or Offshore
Global Note, as the case may be, held on their behalf by the Depositary, or the
Trustee as its custodian, or under the U.S. Global Note or Offshore Global Note,
as the case may be, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such U.S. Global Note or Offshore Global Note, as the case may be, for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or 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 Note.
(b) Transfers of the U.S. Global Note and the Offshore Global Note shall be
limited to transfers of such U.S. Global Note or Offshore Global Note in whole,
but not in part, to the
-33-
Depositary, its successors or their respective nominees. Beneficial interests in
the U.S. Global Note and the Offshore Global Note may be transferred in
accordance with the applicable rules and procedures of the Depositary and the
provisions of Section 2.08. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Note or the Offshore Global Note,
as the case may be, if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the U.S. Global Note or the
Offshore Global Note, as the case may be, and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the registrar has received a request
from the Depositary.
(c) Any beneficial interest in one of the Global Notes that is transferred to
a person who takes delivery in the form of an interest in the other Global Note
will, upon transfer, cease to be an interest in such Global Note and become an
interest in the other Global Note and, accordingly, will thereafter be subject
to all transfer restrictions, if any, and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an
interest.
(d) In connection with any transfer of a beneficial interest in the U.S.
Global Note to a transferee receiving U.S. Physical Notes pursuant to paragraph
(b) of this Section, the registrar shall reflect on its books and records the
date and a decrease in the principal amount of the U.S. Global Note in an amount
equal to the principal amount of the beneficial interest in the U.S. Global Note
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Notes of like tenor and
amount.
(e) In connection with the transfer of the entire U.S. Global Note or
Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section, the U.S. Global Note or Offshore Global Note, as the case may be, shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount of U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the U.S.
Global Note pursuant to paragraph (b) or (d) of this Section shall, except as
otherwise provided by paragraph (f) of Section 2.08, bear the legend regarding
transfer
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restrictions applicable to the U.S. Physical Note set forth in Section 2.03.
(g) Any Offshore Physical Note delivered in exchange for an interest in the
Offshore Global Note pursuant to paragraph (b) of this Section shall, except as
otherwise provided by paragraph (f) of Section 2.08, bear the legend regarding
transfer restrictions applicable to the Offshore Physical Note set forth in
Section 2.03.
(h) The registered holder of the U.S. Global Note and the Offshore Global
Note may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent Members, to take any
action which such holder is entitled to take under this Indenture or the Notes.
SECTION 2.08. Special Transfer Provisions. Unless and until a Note is
---------------------------
exchanged for an Exchange Note, or the Notes are registered for sale in
connection with an effective Registration pursuant to the Registration Rights
Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The following
-------------------------------------------------------
provisions shall apply with respect to the registration of any proposed transfer
of a Note to any Institutional Accredited Investor which is not a QIB (excluding
transfers to or by Non-U.S. Persons):
(i) The registrar shall register the transfer of any Note, whether or not
such Note bears the Private Placement Legend, if (x) the requested transfer is
at least three years after the later of the original issue date of the Notes and
the last date on which such Note was held by an affiliate of the Company or (y)
the proposed transferee has delivered to the registrar (A) a certificate
substantially in the form of Exhibit B hereto and (B) if the aggregate principal
amount of the Notes being transferred is less than $250,000 at the time of such
transfer, an opinion of counsel acceptable to the Company and the registrar that
such transfer is in compliance with the Securities Act of 1933.
(ii) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the registrar of (x) the
documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the registrar's procedures, the registrar
shall reflect on its books and records the date and decrease in the principal
amount of the U.S. Global Note in an amount equal to the principal
-35-
amount of the beneficial interest in the U.S. Global Note to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more U.S. Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect to
-----------------
the registration of any proposed transfer of a Note to a QIB (excluding
transfers to or by Non-U.S. Persons):
(i) If the Note to be transferred consists of U.S. Physical Notes or an
interest in the Temporary Offshore Global Note, the registrar shall register the
transfer if such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Note stating, or has otherwise advised the
Company and the registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise advised
the Company and the registrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the Note to be
transferred consists of U.S. Physical Notes or an interest in the Temporary
Offshore Global Note, upon receipt by the registrar of the documents referred to
in clause (i) and instructions given in accordance with the Depositary's and the
registrar's procedures, the registrar shall reflect on its books and records the
date and an increase in the principal amount of the U.S. Global Note in an
amount equal to the principal amount of the U.S. Physical Note or the interest
in the Temporary Offshore Global Note, as the case may be, to be transferred,
and the Trustee shall cancel the Physical Note or decrease the amount of the
Temporary Offshore Global Note so transferred.
(c) Transfers of Interest in the Temporary Offshore Global Note. The
-----------------------------------------------------------
following provisions shall apply with
-36-
respect to registration of any proposed transfer of interests in the Temporary
Offshore Global Note:
(i) The registrar shall register the transfer of any Note (x) if the proposed
transferee is a Non-U.S. Person and the proposed transferor has delivered to the
registrar a certificate substantially in the form of Exhibit C hereto or (y) if
the proposed transferee is a QIB and the proposed transferor has checked the box
provided for on the form of Note stating, or has otherwise advised the Company
and registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the Company
and the registrar in writing, that it is purchasing the Note for its own account
or an account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by the
registrar of the documents referred to in clause (i)(y) above and instructions
given in accordance with the Depositary's and the registrar's procedures, the
registrar shall reflect on its books and records the date and an increase in the
principal amount of the U.S. Global Note in an amount equal to the principal
amount of the Temporary Offshore Global Note to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Note so transferred.
(d) Transfers of Interests in the Permanent Offshore Global Note or Offshore
------------------------------------------------------------------------
Physical Note. The registrar shall register the transfer of any interests in
-------------
the Permanent Offshore Global Note or Offshore Physical Notes without requiring
any additional certification.
(e) Transfers to Non-U.S. Persons at any Time. The following provisions shall
-----------------------------------------
apply with respect to any transfer of a Note to a Non-U.S. Person:
(i) Prior to the 40th day after the later of the commencement of the offering
and the closing date in
-37-
connection with the Notes, the registrar shall register any proposed transfer of
a Note to a Non-U.S. Person upon receipt of a certificate substantially in the
form of Exhibit C hereto from the proposed transferor.
(ii) On and after the 40th day after the later of the commencement of the
offering and the closing date in connection with the Notes, the registrar shall
register any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a U.S. Physical Note or an interest in the U.S. Global Note, upon
receipt of a certificate substantially in the form of Exhibit C from the
proposed transferor.
(iii) (a) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the registrar of (x)
documents, if any, required by paragraph (ii) and (y) instructions in accordance
with the Depositary's and the registrar's procedures, the registrar shall
reflect on its books and records the date and a decrease in the principal amount
of the U.S. Global Note in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Note to be transferred, and (b) if the
proposed transferee is an Agent Member, upon receipt by the registrar of
instructions given in accordance with the Depositary's and the registrar's
procedures, the registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Note in an amount equal
to the principal amount of the U.S. Physical Notes or the U.S. Global Note, as
the case may be, to be transferred, and the Trustee shall cancel the Physical
Note, if any, so transferred or decrease the amount of the U.S. Global Note.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
------------------------
Notes not bearing the Private Placement Legend, the registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer,
exchange or replacement of Notes bearing the Private Placement Legend, the
registrar shall deliver only Notes that bear the Private Placement Legend unless
either (i) the circumstances contemplated by the third paragraph of Section 2.02
or paragraphs (a)(i)(x) or (e)(ii) of this Section 2.08 exist or (ii) there is
delivered to the registrar an opinion of counsel reasonably satisfactory to the
Company and the registrar to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act of 1933.
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(g) General. By its acceptance of any Note bearing the Private Placement
-------
Legend, each holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture. The
registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture. In connection with any transfer of Notes, each holder agrees by its
acceptance of the Notes to furnish the registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act of 1933; provided that the registrar shall not be required
--------
to determine (but may rely on a determination made by the Company with respect
to) the sufficiency of any such certifications, legal opinions or other
information.
The registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.07 or this Section 2.08. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the registrar.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Notes. In case any
------------------------------------------
temporary or definitive Note shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute, and upon its request the
Trustee shall authenticate and deliver, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case the applicant for a substituted Note shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.
The Trustee may authenticate any such substituted Note and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Note, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses connected therewith. In case any
Note which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company
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may, instead of issuing a substitute Note, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Note) if the
applicant for such payment shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee of the destruction, loss or theft of such Note and of the
ownership thereof.
Every substituted Note issued pursuant to the provisions of this Section 2.09
by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits, and subject to all the provisions, of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes 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. Temporary Notes. Pending the preparation of definitive Notes,
---------------
the Company may execute and the Trustee shall authenticate and deliver temporary
Notes (typed, printed or lithographed). Temporary Notes shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Notes but with such omissions, insertions and variations as may be appropriate
for temporary Notes, all as may be determined by the Company. Every such
temporary Note shall be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Notes. Without unreasonable delay the Company will execute and
deliver to the Trustee definitive Notes and thereupon any or all temporary Notes
may be surrendered in exchange therefor, at the office or agency of the Company
in the Borough of Manhattan, The City of New York (which office for purposes of
this Section 2.10 shall be the office in the said Borough of the registrar
hereunder), and the Trustee shall authenticate and deliver in exchange for such
temporary Notes an equal aggregate principal amount of definitive Notes;
provided, however, that if all Notes are exchanged for Exchange Notes
--------
represented by one or more Global Notes, the Global Notes may remain in
temporary form until such Global Notes are exchanged for Physical Notes pursuant
to Section 2.07(b). Such exchange shall be made by the Company at its own
expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled
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to the same benefits under this Indenture as definitive Notes authenticated and
delivered hereunder.
SECTION 2.11. Cancellation of Notes Paid, etc. All Notes surrendered for the
--------------------------------
purpose of payment, prepayment, exchange or registration of transfer, or in
discharge, shall, if surrendered to the Company or any paying agent or any Note
registrar, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever and the Trustee shall
cancel any Notes so delivered. The Trustee shall return all canceled Notes to
the Company.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Notes may use CUSIP
-------------
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of prepayment as a convenience to Noteholders; provided that
--------
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
a prepayment and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such prepayment shall not be affected by
any defect in or omission of such numbers.
ARTICLE THREE
REDEMPTION OF NOTES;
PREPAYMENT AT THE OPTION OF THE HOLDERS
SECTION 3.01. Redemption at the Option of the Company.
---------------------------------------
(a) The Notes shall not be redeemable at the option of the Company prior to
maturity.
(b) The Notes shall not be entitled to the benefits of a sinking fund.
SECTION 3.02. Prepayment at the Option of the Holder -Preferred Stock
-------------------------------------------------------
Redemption Payment.
------------------
(a) The holder of any Note shall have the right, at his or her option, upon
the giving of a Preferred Event Put Notice, and subject to the terms and
conditions hereof, to tender all, but not less than all, Notes held by that
holder, without regard to the fact that the Notes may not then be otherwise
prepayable,
-41-
for cash, in an amount equal to the principal amount of the Notes (the
"Preferred Event Redemption Price") together with accrued interest to the date
fixed for prepayment of such holder's Notes. The right of each holder to tender
his or her Note or Notes shall continue for 30 days after the date of the
Preferred Event Put Notice (the "Initial Tender Period"), unless such period
shall be extended by the Company by written notice delivered to the holders of
the Notes in accordance with Section 3.02(c) hereof (the Initial Tender Period,
together with all such extensions, is hereinafter referred to as the "Tender
Period"), and shall be exercised by any surrender of such Note or Notes to the
office or agency to be maintained by the Company pursuant to Section 4.02 of
this Indenture, accompanied by written notice that the holder elects to tender
such Note or Notes and (if so required by the Company or the Trustee) by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by the holder or his or her duly
authorized legal representative and transfer tax stamps or funds therefor, if
required. Such tender by a holder shall be irrevocable. The holders of Notes
shall not have the right to tender Notes if on the date of the Preferred Event
Put Notice the Company shall have satisfied and discharged this Indenture
pursuant to Article Twelve or effected a defeasance with respect to the Notes
pursuant to Article Thirteen (except that the Company may not satisfy this
Indenture or effect defeasance in anticipation of a Preferred Stock Redemption
Payment).
(b) Any such prepayment of Notes shall occur on the date on which the Company
shall make the Preferred Stock Redemption Payment (the "Preferred Event
Redemption Date"), which date, if any, shall be (i) at least 31 and no more than
60 days after the date of the Preferred Event Put Notice and (ii) no more than
five days after the last day of the Tender Period (the "Tender Discharge Date").
Such date shall be the same as the date on which the Company repurchases any
2001 Notes, 2005 Debentures, 2013 Debentures or June Senior Debt Securities as a
result of a Preferred Stock Redemption Payment. In no case may the Company make
a Preferred Stock Redemption Payment prior to purchasing Notes which have been
properly tendered in accordance with this Section 3.02. If the Company elects
not to make a particular Preferred Stock Redemption Payment, then the Company
shall have no obligation to purchase the Notes tendered in connection with that
Preferred Stock Redemption Payment. If the proposed Preferred Stock Redemption
Payment is not made on or prior to the earlier to occur of (i) the 60th day
after the date of the Preferred Event Put Notice with respect thereto or (ii)
the Tender Discharge Date with respect thereto, (A) the Company shall, on or
prior to the earlier to occur of the 61st day after the date of such Preferred
Event Put Notice or such Tender Discharge Date, mail, or cause the Trustee to
mail, notice in accordance with Section 3.04 to each Noteholder stating that the
-42-
proposed Preferred Stock Redemption Payment was not made, (B) the Company shall,
on or prior to the earlier to occur of the 66th day after the date of such
Preferred Event Put Notice or such Tender Discharge Date, return, or cause to be
returned, any Notes tendered to the Company in accordance with this Section 3.02
to the holders thereof (together with any written instrument or instruments of
transfer and any transfer tax stamps or funds therefor which accompanied such
Notes when they were delivered by the Noteholder), and (C) the Company shall no
longer have the right or obligation to purchase Notes tendered in connection
with, and as a result of, such proposed Preferred Stock Redemption Payment. The
Company shall not thereafter make a Preferred Stock Redemption Payment unless a
subsequent Preferred Event Put Notice shall have been sent to holders of Notes
in connection therewith and the holders of Notes shall have been afforded an
opportunity to tender their Notes in accordance with, and subject to, the terms
of this Section 3.02.
(c) The Company shall file with the Trustee and shall mail, or cause the
Trustee to mail, to each Noteholder notice in accordance with Section 3.04 (the
"Preferred Event Put Notice") stating that the Company is proposing to make a
Preferred Stock Redemption Payment and that each holder has the right for no
more than 30 days from the date of such notice to tender all, but not less than
all, of his or her Notes for cash in accordance with and subject to the terms
hereof. If the Company elects to extend the Initial Tender Period or any
extension thereof, the Company shall file with the Trustee and shall mail, or
cause the Trustee to mail, at least five days prior to the termination of such
period, notice in accordance with Section 3.04 stating that the Company is
extending such period and that each holder's ability to tender his or her Notes
in accordance with this Section 3.02 will be extended until the end of such
extended period. The Trustee shall not be deemed to have knowledge of any
Preferred Stock Change of Control Event or any corresponding obligation with
respect thereto until so notified by the Company.
(d) On or before, but not more than three Banking Days prior to, the
Preferred Event Redemption Date, the Company shall deposit with the Trustee or
with a paying agent an amount of money sufficient to pay the Preferred Event
Redemption Price, and (except if the Preferred Event Redemption Date shall be an
interest payment date) accrued interest on all the Notes to be purchased on the
Preferred Event Redemption Date.
(e) After a holder has tendered Notes for prepayment as provided in clause
(a) above, the Notes of such holder shall, on the Preferred Event Redemption
Date, become due and payable at the Preferred Event Redemption Price, together
with accrued interest to the Preferred Event Redemption Date, and from and after
such date (unless the Company shall default in the payment
-43-
of such Notes at the Preferred Event Redemption Price) such Notes shall cease to
bear interest. Upon surrender of any such Note for prepayment in accordance
herewith, such Note shall be paid on the Preferred Event Redemption Date by the
Trustee or paying agent at a price equal to the applicable Preferred Event
Redemption Price (together with accrued interest to the Preferred Event
Redemption Date); provided, however, that if the Preferred Event Redemption Date
-------- -------
is an interest payment date, interest accrued to such Preferred Event Redemption
Date shall be payable to the holders of record of such Note or Notes at the
close of business on the relevant record date according to the provisions of
this Indenture.
If any Note to be prepaid shall not be so purchased on the Preferred Event
Redemption Date, the Preferred Event Redemption Price and accrued interest
shall, until paid, bear interest from the Preferred Event Redemption Date at the
rate borne by the Notes.
SECTION 3.03. Prepayment at the Option of the Holder -Exempt Repurchases and
--------------------------------------------------------------
Borrowing.
---------
(a) The holder of any Note shall have the right, at his or her option, upon
the giving of notice described in clause (d) below, and subject to the terms and
provisions hereof, to tender all, but not less than all, Notes held by such
holder without regard to the fact that the Notes may not then be otherwise
prepayable, for cash in an amount equal to the principal of such Notes plus a
premium, if any, as set forth in paragraph 8 of the Notes (together, the "Put
Option Redemption Price"), plus accrued interest to the date fixed for
prepayment. Such prepayment shall occur on a date (the "Put Option Redemption
Date") 35 days after the Put Option Transaction Date (as defined below). The
holder's right to tender shall continue for 30 days after the Put Option
Transaction Date, and shall be exercised by any surrender of such Notes to the
office or agency to be maintained by the Company pursuant to Section 4.02 of
this Indenture, accompanied by written notice that the holder elects to tender
such Notes and (if so required by the Company or the Trustee) by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by the holder or his or her duly authorized legal
representative and transfer tax stamps or funds therefor, if required. Such
tender by a holder shall be irrevocable.
(b) The holder shall have the right to tender under clause (a) upon the
occurrence of an event or series of events set forth below, provided that at the
--------
time of the occurrence of such event, the Company shall not have satisfied and
discharged this Indenture pursuant to Article Twelve or effected a defeasance
with respect to the Notes pursuant to Article Thirteen
-44-
(except that the Company may not satisfy this Indenture or effect defeasance in
anticipation of (i) or (ii) below):
(i) The Company makes an Exempt Repurchase and immediately thereafter and
after giving effect to any Exempt Repurchase Indebtedness incurred or to be
incurred for the purpose of making such Exempt Repurchase, the Company is unable
to incur an additional One Dollar ($1.00) of Indebtedness under Section 4.07,
without giving effect to Section 4.07(b) (hereinafter referred to as a "Put
Option Stock Repurchase").
(ii) The Company incurs Indebtedness and immediately thereafter, and after
giving effect to such Indebtedness, the Company is able to incur an additional
$1 of Indebtedness under Section 4.07, but only because of the effect of Section
4.07(b) (hereinafter referred to as a "Put Option Borrowing").
(c) The Company shall file with the Trustee and shall mail, or cause the
Trustee to mail, to each Noteholder not more than 45 days and not less than 15
days prior to the proposed date on which a Put Option Stock Repurchase or Put
Option Borrowing (either, a "Put Option Transaction") is to occur (the "Proposed
Date") a notice as provided in Section 3.04 stating that the Company is
proposing to make a Put Option Stock Repurchase or a Put Option Borrowing,
whichever the case may be, on the Proposed Date, and that if the Put Option
Transaction is consummated, each holder shall have the right to tender all, but
not less than all, of his or her Notes for cash pursuant to the terms hereof.
(d) The date on which the proposed Put Option Transaction shall occur (the
"Put Option Transaction Date") shall be no more than 30 days after the Proposed
Date. On the Put Option Transaction Date, the Company shall mail, or cause the
Trustee to mail, notice in accordance with Section 3.04 to each Noteholder
stating that the Put Option Transaction has been consummated and that each
holder of Notes has the right to tender his or her Notes for a period of 30 days
after the Put Option Transaction Date.
(e) On or before, but not more than three Banking Days prior to, the Put
Option Redemption Date, the Company shall deposit with the Trustee or with a
paying agent an amount of money sufficient to pay the Put Option Redemption
Price, and (except if the Put Option Redemption Date shall be an interest
payment date) accrued interest on, all the Notes to be purchased on the Put
Option Redemption Date. Prior to the consummation of any Put Option
Transaction, the Company shall deliver to the Trustee an Officers' Certificate
to the effect that it has arranged for committed financing sufficient to
purchase all of the Notes in accordance with this Section 3.03.
-45-
(f) All Notes properly tendered for prepayment pursuant to clause (a) above
shall, on the Put Option Redemption Date, become due and payable at the
applicable Put Option Redemption Price plus accrued interest, if any, and from
and after such date (unless the Company shall default in the payment thereof)
such Notes shall cease to bear interest. Upon surrender of any such Note for
prepayment in accordance herewith, such Note shall be paid on the Put Option
Redemption Date by the Trustee or paying agent at a price equal to the
applicable Put Option Redemption Price, together with accrued interest to the
Put Option Redemption Date; provided, however, that if the Put Option Redemption
-------- -------
Date is an interest payment date, interest accrued to such Put Option Redemption
Date shall be payable to the holders of record of such Notes at the close of
business on the relevant record date according to the provisions of this
Indenture.
If any Note to be prepaid shall not be so purchased on the Put Option
Redemption Date, the Put Option Redemption Price and accrued interest shall,
until paid, bear interest from the Put Option Redemption Date at the rate borne
by the Notes.
(g) Upon (A) the consummation of the proposed Put Option Transaction no later
than 30 days after the Proposed Date, and (B) the prepayment of all Notes
properly tendered for prepayment pursuant to clause (a) above, the Company shall
no longer be bound by the provisions of this Section 3.03 and Sections 4.07,
4.08 and 4.11.
(h) If the proposed Put Option Transaction that was the subject of the notice
provided pursuant to clause (c) above is not consummated within 30 days of the
Proposed Date, the Company shall, on the 31st day after the Proposed Date, mail,
or cause the Trustee to mail, notice in accordance with Section 3.04 to each
Noteholder stating that the proposed Put Option Transaction was not consummated.
SECTION 3.04. Mailing of Notices. If pursuant to this Article Three, the
------------------
Company or the Trustee is required to mail to one or more Noteholders notice of
the right of the Noteholders to require prepayment, such notice shall be given
in the manner hereinafter provided. Notice shall be mailed to the subject
Noteholders at their last addresses as the same shall appear on the register for
the Notes described in Section 2.06. Such mailing shall be by first-class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to any subject Noteholder shall not affect the validity of the
proceedings for the prepayment of any other Note.
-46-
Each such notice of the right of the holders to require prepayment shall
specify (except as otherwise provided in Sections 3.02 and 3.03) the date fixed
for prepayment, the prepayment price at which Notes are to be purchased, the
place or places of payment, the CUSIP number of the Notes, that payment will be
made upon presentation and surrender of such Notes to be prepaid (and other
conditions of payments, if any), the terms and conditions to which each
Noteholder's right to require prepayment is subject, that interest accrued to
the date fixed for prepayment on Notes or portions thereof to be prepaid will be
paid as specified in the notice, that on or after said date interest on Notes or
portions thereof to be prepaid will cease to accrue and such other information
as is provided for in the Section of this Article Three calling for such notice.
Either the Company shall give the notice or shall provide the Trustee with
copies of the notice and shall request the Trustee to mail the notice on the
Company's behalf.
SECTION 3.05. Cancellation of Notes after Prepayment. All Notes surrendered
--------------------------------------
for prepayment shall, if surrendered to the Company or any prepayment agent, be
delivered to the Trustee for cancellation and, if surrendered to the Trustee,
shall be canceled by it upon the occurrence of the prepayment.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. The Company
------------------------------------------
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on each of the Notes at the
places, at the respective times and in the manner provided herein and in the
Notes.
SECTION 4.02. Offices for Notices and Payments, etc. So long as any of the
--------------------------------------
Notes remain outstanding, the Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Notes may be presented for
payment, and an office or agency where the Notes may be presented for
registration of transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the Company in respect of
the Notes or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of each such office or agency and of any
change of location thereof. If the Company shall fail to 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 office of the Trustee and the Company hereby
appoints the Trustee to be,
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and the Trustee agrees to serve as, the Company's initial agent to receive all
such presentations, demands and notices.
SECTION 4.03. Appointments to Fill Vacancies in Trustee's Office. The
--------------------------------------------------
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.09, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 4.04. Provision as to Paying Agent. (a) If the Company shall
----------------------------
appoint a paying agent other than the Trustee, 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 4.04:
(1) that it will hold all sums held by it as such agent for the payment of
the principal of and premium, if any, or interest on the Notes (whether such
sums have been paid to it by the Company or by any other obligor on the Notes)
in trust for the benefit of the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the Company (or by
any other obligor on the Notes) to make any payment of the principal of and
premium, if any, or interest on the Notes when the same shall become due and
payable; and
(3) that at any time during the continuance of an Event of Default, upon
request of the Trustee, it will forthwith pay to the Trustee all sums so held in
trust.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of and premium, if any, or interest on the Notes,
set aside, segregate and hold in trust for the benefit of the holders of the
Notes a sum sufficient to pay such principal and premium, if any, or interest so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor on the Notes) to make any
payment of the principal of and premium, if any, or interest on the Notes when
the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by any paying agent hereunder as required by
this Section 4.04, such sums to be held by the Trustee upon the trusts herein
contained and upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such money.
-48-
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
Sections 12.03 and 12.04.
SECTION 4.05. Corporate Existence and Maintenance of Properties. Except as
-------------------------------------------------
provided in Section 11.01 hereof, the Company will at all times maintain its
corporate existence, will maintain its properties in adequate condition for the
conduct of its business and will do or cause to be done all things necessary to
preserve and keep in full force and effect its rights (charter and statutory)
and franchises; provided, however, that the Company will not be required to
-------- -------
preserve any right or franchise if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Noteholders.
SECTION 4.06. Restricted Payments. The Company covenants and agrees, so long
-------------------
as any of the Notes remain outstanding, that it will not declare or pay any
dividend on, or authorize or make any distribution in respect of, any shares of
any class of the Company's Capital Stock (except dividends or distributions
payable in shares of its Capital Stock), or authorize or make any purchase,
redemption or acquisition for value of, or permit any Subsidiary to purchase or
otherwise acquire for value, any shares of any class of the Company's Capital
Stock (or any rights, warrants or options to purchase any class of Capital Stock
of the Company, except if such rights, warrants or options are held by an
employee of the Company and such purchase, redemption or acquisition occurs in
connection with the termination of such employee's employment with the Company),
otherwise than pursuant to Exempt Repurchases (any declaration, authorization or
payment so restricted being herein called a "Restricted Payment"): (i) if a
default shall have occurred and be continuing at the time of such proposed
Restricted Payment or shall occur as a consequence thereof; or (ii) if the
aggregate of all Restricted Payments made from September 30, 1995 through and
including the date on which such Restricted Payment is made, would exceed the
sum of (a) the amount by which Operating Cash Flow of the Note Restricted Group
on a consolidated basis for the period, treated as a single accounting period,
from September 30, 1995 through the fiscal quarter immediately preceding such
proposed Restricted Payment for which financial statements are available exceeds
1.20 times the Total Interest Expense for the period, treated as a single
accounting period, from September 30, 1995 through said fiscal quarter
immediately preceding such proposed Restricted Payment, plus (b) $1,029,726,000,
plus (c) the aggregate net proceeds, including the fair market value of property
other than cash, received by the Company from the issue or sale (other than to a
Subsidiary) subsequent to September 30, 1995 of any class of
-49-
Capital Stock of the Company. For all purposes of this Section 4.06, any
recapitalization of the Company (whether or not effected through a merger or
consolidation with, or sale of substantially all of the assets of the Company
to, any Person) that has the effect of transferring money, property, or
securities other than Capital Stock of the Company to any holder of any shares
of the Capital Stock of the Company (otherwise than in connection with an Exempt
Repurchase) shall be deemed a Restricted Payment.
For purposes of this Section 4.06, "default" shall mean the occurrence of any
event specified in clauses (a), (b), (c), (d), (e) or (f) of Section 6.01, not
including periods of grace, if any, provided for therein.
SECTION 4.07. Limitation on Indebtedness. (a) Except as provided in Section
--------------------------
3.03(g), the Company covenants and agrees, so long as any of the Notes remain
outstanding, that it shall not, and shall not permit any member of the Note
Restricted Group to, incur, create, assume, directly or indirectly guarantee or
in any other manner become liable with respect to, or become responsible for the
payment of, any additional Indebtedness (other than Exempt Repurchase
Indebtedness) if, immediately thereafter and giving effect thereto on a pro
forma basis, the aggregate Indebtedness of the Note Restricted Group would be
more than the product of (i) four times the Operating Cash Flow of the Note
Restricted Group for the fiscal quarter most recently preceding such incurrence
for which financial statements are available, multiplied by (ii) nine.
(b) For purposes of the above calculation, the aggregate Indebtedness of the
Note Restricted Group shall be reduced by the aggregate Exempt Repurchase
Indebtedness of the Note Restricted Group.
SECTION 4.08. Limitation on Investment in Subsidiaries other than the Note
------------------------------------------------------------
Restricted Group. Except as provided in Section 3.03(g), the Company covenants
----------------
and agrees, so long as any of the Notes remain outstanding, that it shall not,
and shall not permit any member of the Note Restricted Group to, directly or
indirectly make any loan or transfer of property to, or investment in, any
Subsidiary that is not part of the Note Restricted Group (other than (i) the
provision of goods and services to such a Subsidiary if such goods and services
are billed to such a Subsidiary on the basis of the provider's cost therefor and
(ii) advances to any Subsidiary that is not part of the Note Restricted Group in
the ordinary course of business by the Note Restricted Group if the interest
payable on such advances is generally consistent with the Company's cost of
borrowings under its credit facilities), unless, immediately after giving effect
to such loan or investment on a pro forma
-50-
basis, the Note Restricted Group would be able to incur an additional One Dollar
($1.00) of Indebtedness under Section 4.07, as determined for the fiscal quarter
most recently completed for which financial statements are available at the date
of such loan, transfer or investment.
The Company's obligation to comply with this covenant will be suspended once
the Notes or the Exchange Notes are Investment Grade Rated.
SECTION 4.09. Transactions with Stockholders and Affiliates. The Company
---------------------------------------------
covenants and agrees, so long as any of the Notes remain outstanding, that it
will not, and will not permit any Subsidiary that is part of the Note Restricted
Group to, enter into any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of five percent or more of any class of Capital Stock
of the Company or with any Affiliate of the Company or of any such holder, on
terms that are less favorable to the Company or such Subsidiary, as the case may
be, than those which might be obtained at the time of such transaction from a
Person who is not such a holder or Affiliate; provided, however, that this
-------- -------
Section 4.09 shall not limit, or be applicable to, (i) Exempt Repurchases, (ii)
transactions between the Company and a Subsidiary or between Subsidiaries, (iii)
transactions pursuant or relating to Restricted Stock Purchase Agreements or
(iv) the payment of reasonable and customary regular fees to directors of the
Company who are not employees of the Company.
The Company's obligation to comply with this covenant will be suspended at any
time once the Notes or the Exchange Notes are Investment Grade Rated.
SECTION 4.10. Certificate to Trustee. The Company will furnish to the
----------------------
Trustee not more than 90 days after the end of the Company's fiscal year
(beginning with fiscal 1995) in each year a brief certificate from the principal
executive, financial or accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture), stating that in
the course of the performance by the signer of his or her duties as an officer
of the Company, he or she would normally have knowledge of any default by the
Company and, if he or she has knowledge of any default, specifying each such
default of which the signer has knowledge and the nature thereof.
SECTION 4.11. Limitation on Liens. Except as provided in Section 3.03(g),
-------------------
the Company will not, and will not permit any
-51-
Subsidiary that is part of the Note Restricted Group to, create, incur or assume
any Lien on any Principal Property or any shares of Capital Stock or
Indebtedness of any such Subsidiary without making effective provision for all
of the Notes and all other amounts due under this Indenture to be directly
secured equally and ratably with (or prior to) the obligation or liability
secured by such Lien unless, at the time of such creation, incurrence or
assumption and, after giving effect thereto, the aggregate amount of all
Indebtedness of the Note Restricted Group so secured does not exceed five times
Annualized Cash Flow; provided, however, that if all Liens (other than Liens
-------- -------
created pursuant to this Section or the comparable provisions of the indentures
relating to the other senior debt securities of the Company) on Principal
Property or on shares of Capital Stock or Indebtedness of any Subsidiary that is
part of the Note Restricted Group which secure Indebtedness of the Company or
any such Subsidiary are released, then (i) all then existing Liens created
pursuant to this Section (together with all then existing Liens created pursuant
to the comparable provisions of the indentures relating to the other senior debt
securities of the Company) shall be automatically released and (ii) the Trustee
shall be authorized to execute and deliver to the Company any documents
requested by the Company which are required to evidence the release of such
Liens.
The foregoing limitation does not apply to:
(i) Liens securing obligations of the Company to reimburse any bank or other
Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments; or
(ii) Liens securing Indebtedness on the assets of any entity existing at the
time such assets are acquired by the Company or any of its Subsidiaries that are
part of the Note Restricted Group, whether by merger, consolidation, purchase of
assets or otherwise; provided that such Liens (x) are not created, incurred or
--------
assumed in connection with, or in contemplation of, such assets being acquired
by the Company or any of its Subsidiaries that are part of the Note Restricted
Group and (y) do not extend to any other Principal Property or assets of the
Company or any of its Subsidiaries that are part of the Note Restricted Group.
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ARTICLE FIVE
NOTEHOLDERS LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01. Noteholders Lists. If and so long as the Trustee shall not be
-----------------
the Note registrar, the Company will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the holders of the Notes pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) not more than 15 days after each record date for the
payment of semi-annual interest on the Notes (as specified in Section 2.04
hereof), as of such record date, and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, such information to be as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 5.02. Reports by the Company. (a) The Company covenants to file
----------------------
with the SEC all reports and other information required to be filed by the
Company with the SEC pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 at all times from and after the earlier of (i) the date of
the consummation of a registered exchange offer for the Notes by the Company or
other registration of the Notes (the "Registration") and (ii) the date that is
six months after the date of the original issuance of the Notes under this
Indenture. The Company covenants to file with the Trustee copies of such reports
or other information within 15 days after their being filed with the SEC.
(b) The Company covenants and agrees that it will deliver to the Trustee and
mail, or cause the Trustee to mail, to each holder of Notes:
(1) as soon as available and in any event within 90 days after the end of
each fiscal year of the Company (i) a consolidated balance sheet of the Company
and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, shareholders' equity and cash flows for
such fiscal year, all reported on by Deloitte & Touche LLP or other independent
public accountants of nationally recognized standing, (ii) a report containing a
management's discussion and analysis of financial condition and results of
operations and a description of the business and properties of the Company and
(iii) a report as to the maximum amount of Restricted Payments that the Company
could have made as of the end of the fiscal year without violating Section 4.06,
such report explaining
-53-
how such maximum amount was calculated and briefly describing any transaction
that occurred during the last quarter that affected such maximum amount;
(2) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the Company (i) an
unaudited consolidated financial report for such quarter, (ii) a report
containing a management's discussion and analysis of financial condition and
results of operations and (iii) a report as to the maximum amount of Restricted
Payments that the Company could have made as of the end of the quarter without
violating Section 4.06, such report explaining how such maximum amount was
calculated and briefly describing any transaction that occurred during the
quarter that affected such maximum amount;
(3) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of annual letters; and
(4) promptly upon the filing thereof, copies of all annual, quarterly, monthly
or periodic reports which the Company shall have filed with the SEC.
(c) The Company covenants to supply the information required under Rule 144A
to any holder of Notes or any prospective purchaser of Notes designated by a
holder, upon the request of such holder or prospective purchaser, at all times
prior to the Registration.
SECTION 5.03. Reports by the Trustee. Any Trustee's report required under
----------------------
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before June 1, 1996, and on or before every June 1 thereafter, and shall be
dated as of a date 60 days prior to such June 1.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON THE OCCURRENCE OF AN EVENT OF DEFAULT
SECTION 6.01. Events of Default. In case one or more of the following Events
-----------------
of Default shall have occurred and be continuing:
(a) default in the payment of any installment of interest upon any of the
Notes as and when the same shall
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become due and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of or premium, if any, on any of
the Notes as and when the same shall become due and payable either at maturity
or in connection with any prepayment, by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Notes or in
this Indenture continued for a period of 60 days after the date on which written
notice of such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee, or to the Company and the Trustee by
the holders of at least 25 percent in aggregate principal amount of the Notes at
the time outstanding; or
(d) (i) default by the Company in the payment when due at maturity of any
indebtedness for borrowed money (other than indebtedness which is non-recourse
to the Company) in excess of $25,000,000 issued under an indenture or instrument
evidencing such indebtedness, whether such indebtedness is outstanding at the
date of this Indenture or is hereafter outstanding, and continuation of such
default for the greater of any period of grace applicable thereto or 10 days
from the date of such default or (ii) an event of default, as defined in any
indenture or instrument evidencing or under which the Company has at the date of
this Indenture or shall hereafter have outstanding at least $25,000,000
aggregate principal amount of indebtedness for borrowed money, shall happen and
be continuing and such indebtedness shall have been accelerated so that the same
shall be or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled, or such indebtedness shall not be discharged, within 10
days after notice thereof shall have been given to the Company by the Trustee
(if such event be known to it), or to the Company and the Trustee by the holders
of at least 25 percent in aggregate principal amount of the Notes at the time
outstanding; provided that if such event of default or event of default under
--------
such indenture or instrument shall be remedied or cured by the Company or waived
by the holders of such indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or any of
the Noteholders, and provided further, however, that, subject to the provisions
-------- ------- -------
of Section 7.01, the Trustee shall not be charged with knowledge of any such
default or event of default unless written notice thereof
-55-
shall have been given to the Trustee by the Company, by the holder or an agent
of the holder of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default or event of default shall
have occurred, or by the holders of not less than 25 percent in the aggregate
principal amount of the Notes at the time outstanding; or
(e) the Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian, or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(f) an involuntary case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days;
then and in each and every such case, unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the holders of
not less than 25 percent in aggregate principal amount of the Notes then
outstanding hereunder, by notice (an "Acceleration Notice") in writing to the
Company (and to the Trustee if given by Noteholders), may declare the principal
of all the Notes and the interest accrued thereon and premium, if any, to be due
and payable immediately, and (unless prior to the date of such Acceleration
Notice all Events of Default in respect of the Notes shall have been cured or
waived) upon any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Notes contained to the
contrary notwithstanding, provided that except in the case (A) of an Event of
--------
Default under clause (e) or (f) above or (B) that no more than 10 days and no
less than five days prior to the giving of an Acceleration Notice the Trustee
shall have given to the Company (or, in the case of an acceleration by the
Noteholders, the Noteholders shall have given to the Trustee and the Company) a
notice (a "Pre-Acceleration Notice") in writing that in no more than 10 days the
Trustee (or
-56-
the Noteholders) intends to give an Acceleration Notice, an Acceleration Notice
shall not become effective until five days after receipt of such notice by the
Company (and the Trustee if given by Noteholders). The provision above
regarding acceleration, however, is subject to the condition that if, at any
time after the principal of the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Notes and the principal of and premium, if
any, on any and all Notes which shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal and premium, if any, at the rate borne by the Notes, to the date of
such payment or deposit) and the expenses of the Trustee, and any and all
defaults under this Indenture, other than the nonpayment of principal of and
accrued interest on Notes which shall have become due by acceleration, shall
have been remedied--then and in every such case the holders of a majority in
aggregate principal amount of the Notes then outstanding, by written notice to
the Company and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the holders of Notes, and the Trustee shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the holders of Notes and the Trustee shall continue as though no
such proceeding had been taken.
The Trustee shall give the Noteholders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act of 1939. For the purpose of
this paragraph, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.02. Payment of Notes on Default; Suit Therefor. The Company
------------------------------------------
covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (b) in case default shall be made in the payment of the principal of
-57-
and premium, if any, on any of the Notes as and when the same shall have become
due and payable, whether at maturity of the Notes or in connection with any
prepayment, by declaration or otherwise--then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Notes,
the whole amount that then shall have become due and payable on all such Notes
for principal and premium, if any, or interest, or both, as the case may be,
with interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon the
overdue installments of interest at the rate borne by the Notes; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code, or any other applicable law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other
obligor, or in the case of any other similar judicial proceedings relative to
the Company or other obligor upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes 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 6.02, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal, premium, if any, and
interest owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or
-58-
their property, and to collect and receive any monies or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Noteholders to
make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due it for compensation and expenses, including counsel
fees and expenses incurred by it up to the date of such distribution. To the
extent that such payment of reasonable compensation, expenses and counsel fees
and expenses out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, monies, securities and other property
which the holders of the Notes may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or adopt on behalf of any Noteholder any plan of reorganization or
arrangement, affecting the Notes or the rights of any Noteholder, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Notes.
SECTION 6.03. Application of Monies Collected by Trustee. Any monies
------------------------------------------
collected by the Trustee shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee, its agents, attorneys and counsel, and of all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith;
Second: In case the principal of the outstanding Notes shall not have become
due and be unpaid, to the payment of interest on the Notes in the order of the
maturity of the
-59-
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 rate borne by the Notes, such payments to be made ratably to the persons
entitled thereto;
Third: In case the principal of the outstanding Notes shall have become due,
by declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Notes for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Notes; and in case such monies shall be
insufficient to pay in full the whole amounts so due and unpaid upon the Notes,
then to the payment of such principal and premium, if any, and interest without
preference or priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of interest
over any other installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal and premium, if any, and accrued and
unpaid interest;
Fourth: To the payment of the remainder, if any, to the Company.
SECTION 6.04. Proceedings by Noteholder. No holder of any Note shall have
-------------------------
any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the holders of not less than 25
percent in aggregate principal amount of the Notes then outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the taker and holder
of every Note with every other taker and holder and the Trustee, that no one or
more holders of Notes shall have any right in any manner whatever by virtue of
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of such Notes, or to obtain or seek to
obtain priority over or preference to any other
-60-
such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Notes (except as otherwise provided herein). For the protection and enforcement
of this Section 6.04, each and every Noteholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture (including the first
paragraph of this Section 6.04), however, the right of any holder of any Note to
receive payment of the principal of and premium, if any, and interest on such
Note, on or after the respective due dates expressed in such Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
SECTION 6.05. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 6.06. Remedies Cumulative and Continuing. All powers and remedies
----------------------------------
given by this Article Six to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the holders of
the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article Six or
by law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Noteholders.
SECTION 6.07. Direction of Proceedings and Waiver of Defaults by Majority
-----------------------------------------------------------
Noteholders. The holders of a majority in aggregate principal amount of the
-----------
Notes at the time outstanding determined in accordance with Section 8.04 shall
have the right
-61-
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee; provided, however, that (subject to the provisions of Section 7.01)
-------- -------
the Trustee shall have the right to decline to follow any such direction if the
Trustee shall be advised by counsel that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed could involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of the Notes, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past default or Event of
Default hereunder and its consequences except a default in the payment of
interest, or premium, if any, on, or the principal of, the Notes. Upon any such
waiver the Company, the Trustee and the holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 6.07, said default or Event
of Default shall for all purposes of the Notes and this Indenture be deemed to
have been cured and to be not continuing.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee; During Default; Prior
-------------------------------------------------------------
to Default. The Trustee, prior to the occurrence of an Event of Default and
----------
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has
not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
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(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such statements, certificates or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Notes at the time
outstanding determined as provided in Section 8.04 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers, if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
The Trustee shall not be deemed to have notice of any Event of Default
described in Section 6.01(c), 6.01(d), 6.01(e) or 6.01(f) or any event which,
with the passage of time, might
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become an Event of Default described in Section 6.01(c), 6.01(d), 6.01(e) or
6.01(f) unless the Trustee has received written notice thereof, addressed to a
Responsible Officer of the Trustee.
This Section 7.01 is in furtherance of and subject to Sections 315 and 316 of
the Trust Indenture Act of 1939.
SECTION 7.02. Certain Rights of the Trustee. In furtherance of and subject
------------------------------
to the Trust Indenture Act of 1939, and subject to Section 7.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order or direction of any
of the Noteholders, pursuant to the provisions of this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) subject to the second sentence of Section 7.01, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, note or other paper or
document unless requested in writing to do so by the
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holders of not less than a majority in principal amount of the Notes then
outstanding, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, during reasonable business hours; provided,
--------
however, that if the payment within a reasonable time to the Trustee of the
-------
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed by it with due care hereunder.
SECTION 7.03. No Responsibility for Recitals, etc. The recitals contained
------------------------------------
herein and in the Notes (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be responsible for the statements relating to the
Notes in any registration statement for the Notes filed with the SEC. The
Trustee shall not be accountable for the use or application by the Company of
any Notes or the proceeds of any Notes authenticated and delivered by the
Trustee in conformity with the provisions of this Indenture.
SECTION 7.04. Trustee, Paying Agents or Registrar May Own Notes. The Trustee
---------------------------------------------------
or any paying agent or Note registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes with
the same rights it would have if it were not Trustee, paying agent, Note
registrar or such other agent.
SECTION 7.05. Monies to Be Held in Trust. Subject to the provisions of
--------------------------
Section 12.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money
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received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 7.06. Compensation and Expenses of Trustee. The Company covenants
------------------------------------
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from time to
time agree upon in writing (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except to the extent any such expense, disbursement or
advance may arise from its negligence or bad faith. The Company also covenants
to indemnify and defend each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, damage, claims, liability or
expense, including taxes (other than taxes based on the income, profits, capital
or net worth of the Trustee or any franchise or general doing business tax of
the Trustee), arising out of or in connection with the acceptance or
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim of
liability in the premises, except to the extent any such loss, liability or
expense may arise from the Trustee's negligence or bad faith. The obligations of
the Company under this Section 7.06 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Notes. The obligation of the Company under this
Section 7.06 shall survive the satisfaction and discharge of this Indenture.
Any compensation or expense incurred by the Trustee after a default specified in
Section 6.01(e) or 6.01(f) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 7.06 shall include any predecessor
Trustee but the negligence or bad faith of any Trustee shall not affect the
rights of any other Trustee under this Section 7.06.
SECTION 7.07. Officers' Certificate as Evidence. Except as otherwise
---------------------------------
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively
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proved and established by an Officers' Certificate delivered to the Trustee, and
such Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Eligibility of Trustee. The Trustee hereunder shall at all
----------------------
times be a corporation having a combined capital and surplus of at least
$10,000,000 and which is eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, State, or District of Columbia supervising or examining authority,
then for the purposes of this Section 7.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
SECTION 7.09. Resignation or Removal of Trustee. (a) The Trustee may at
---------------------------------
any time resign by giving written notice of resignation to the Company and by
mailing, at the request and expense of the Company, notice thereof to the
holders of Notes at their addresses as they shall appear on the registry books
of the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 60 days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Noteholder who
has been a bona fide holder of a Note or Notes for at least six months may,
subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
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:
(1) the Trustee shall fail to comply with the provisions of Section 310(b) of
the Trust Indenture Act of 1939, after written request therefor by the Company
or by any Noteholder who has been a bona fide holder of a Note or Notes for at
least six months, or
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(2) the Trustee shall cease to be eligible in accordance with the provisions
of Section 7.08 and shall fail to resign after written request therefor by the
Company or by any such Noteholder, or
(3) the Trustee shall become incapable of acting as the Trustee under this
Indenture, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to Section
315(e) of the Trust Indenture Act of 1939, any Noteholder who has been a bona
fide holder of a Note or Notes for at least six months may, on behalf of himself
or herself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Notes at
the time outstanding may at any time remove the Trustee and nominate a successor
trustee which shall be deemed appointed as successor trustee unless within 10
days after such nomination the Company objects thereto, in which case the
Trustee so removed or any Noteholder, upon the terms and conditions and
otherwise as in subdivision (a) of this Section 7.09 provided, may petition any
court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee to any of the provisions of this Section 7.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
7.10.
SECTION 7.10. Acceptance by Successor Trustee. Any successor trustee
-------------------------------
appointed as provided in Section 7.09 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written
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request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section 7.10, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Notes at their addresses as they shall appear on the
registry books of the Company. If the Company fails to mail such notice within
10 days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
No successor trustee shall accept appointment as provided in this Section 7.10
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.12 and eligible under the provisions of
Section 7.08.
SECTION 7.11. Succession by Merger, etc. Any corporation into which the
--------------------------
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor to
the Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 7.08 without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Notes 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 Notes so
authenticated; and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that
-------- -------
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the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Notes in the name of any predecessor trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 7.12. Disqualification; Conflicting Interests. If the Trustee has or
---------------------------------------
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act of 1939, the Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act of 1939 and this Indenture.
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
SECTION 8.01. Action by Noteholders. Whenever in this Indenture it is
---------------------
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by Noteholders in person
or by agent or proxy appointed in writing, or (b) by the record of the holders
of Notes voting in favor thereof at any meeting of Noteholders duly called and
held in accordance with the provisions of Article Nine, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Noteholders.
SECTION 8.02. Proof of Execution by Noteholders; Record Date. Subject to the
----------------------------------------------
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Noteholder or his or her agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Notes shall be proved by the registry of such Notes
or by a certificate of the Note registrar. The Company may set a record date
for purposes of determining the identity of holders of Notes entitled to vote or
consent to any action referred to in Section 8.01 or Section 9.01, 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 resolicitation) 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 Notes of record on such record date shall be entitled
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to so vote or give such consent or to withdraw such vote or consent.
The record of any Noteholders' meeting shall be proved in the manner provided
in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any
------------------------------
paying agent, and any Note registrar may deem the person in whose name such Note
shall be registered upon the books of the Company to be, and may treat him or
her as, the absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and
premium, if any, and interest on such Note; and neither the Company nor the
Trustee nor any paying agent nor any Note registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being, or upon his or her order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for monies
payable upon any such Note.
SECTION 8.04. Company-Owned Notes Disregarded. In determining whether the
-------------------------------
holders of the requisite aggregate principal amount of Notes have concurred in
any direction, consent, waiver or other action under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee
--------
shall be protected in relying on any such direction, consent, waiver or other
action only Notes which the Trustee knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.04 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Notes and
that the pledgee is not the Company or any other obligor or a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.05. Revocation of Consents; Future Holders Bound. At any time
--------------------------------------------
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action, any holder of a Note which is shown by the evidence to be included
in the Notes the holders of which have
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consented to such action may, by filing written notice with the Trustee at the
Principal Office of the Trustee and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Note. Except as aforesaid, any
such action taken by the holder of any Note shall be conclusive and binding upon
such holder and upon all future holders and owners of such Note, irrespective of
whether any notation in regard thereto is made upon such Note or any Note issued
in exchange or substitution therefor.
ARTICLE NINE
NOTEHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings. A meeting of Noteholders may be called
--------------------
at any time and from time to time pursuant to the provisions of this Article
Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Notes under any other
provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at any time call
---------------------------
a meeting of Noteholders to take any action specified in Section 9.01, to be
held at such time and at such place in the Borough of Manhattan, The City of New
York, New York, as the Trustee shall determine. Notice of every meeting of the
Noteholders, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to
holders of Notes at their addresses as they shall appear on the registry books
of the Company. Such notice shall be mailed not less than 20 nor more than 90
days prior to the date fixed for the meeting.
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Any meeting of Noteholders shall be valid without notice if the holders of all
Notes then outstanding are present in person or by proxy or if notice is waived
before or after the meeting by the holders of all Notes outstanding, and if the
Company and the Trustee are either present by duly authorized representatives or
have, before or after the meeting, waived notice.
SECTION 9.03. Call of Meetings by Company or Noteholders. In case at any
------------------------------------------
time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10 percent in aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of Noteholders,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Noteholders may determine the time and the place in said Borough of Manhattan
for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting. To be entitled to vote at any
-------------------------
meeting of Noteholders a person shall (a) be a holder of one or more Notes as of
the record date in respect of such vote set pursuant to Section 8.02 or (b) be a
person appointed by an instrument in writing as proxy by a holder of one or more
Notes. The only persons who shall be entitled to be present or to speak at any
meeting of Noteholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.05. Regulations. Notwithstanding any other provision of this
-----------
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or by
Noteholders as provided in Section 9.03, in which case the Company or the
Noteholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of
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the holders of a majority in principal amount of the Notes represented at the
meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $50,000 principal amount of Notes
held or represented by him or her; provided, however, that no vote shall be cast
-------- -------
or counted at any meeting in respect of any Note challenged as not outstanding
and ruled by the chairman of the meeting not to be outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Notes held by
him or her or instruments in writing as aforesaid duly designating him or her as
the person to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned
from time to time by a majority of the votes present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 9.06. Voting. The vote upon any resolution submitted to any meeting
------
of Noteholders shall be by written ballot on which shall be subscribed the
signatures of the holders of Notes or of their representatives by proxy and the
principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 9.07. No Delay of Rights by Meeting. Nothing in this Article Nine
-----------------------------
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the
-74-
Trustee or to the Noteholders under any of the provisions of this Indenture or
of the Notes.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Noteholders. The
------------------------------------------------------
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Eleven
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the holders of Notes, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
-------- -------
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Notes in coupon form
(including Notes registrable as to principal only) and to provide for
exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose; or
(d) to cure any ambiguity or to correct or supplement any provision contained
herein or in any supplemental indenture which may be inconsistent with any other
provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture
which shall not adversely affect the interests of the holders of the Notes in
any material respect.
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The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01
may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 10.02.
SECTION 10.02. Supplemental Indentures with Consent of Noteholders. With the
---------------------------------------------------
consent (evidenced as provided in Section 8.01) of the holders of a majority in
aggregate principal amount of the Notes at the time outstanding, the Company,
when authorized by the resolutions of the Board of Directors, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; provided, however, that no such supplemental indenture shall (i)
-------- -------
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or make the principal thereof or interest or premium, if any,
thereon payable in any coin or currency other than that provided in the Notes
without the consent of the holder of each Note so affected, or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all Notes
then outstanding.
Upon the request of the Company, accompanied by a copy of the resolutions of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 10.02 to approve the particular
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form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
After an amendment under this Section 10.02 becomes effective, the Company, or
at its request, the Trustee in the name and at the expense of the Company, shall
mail to each Noteholder a notice briefly describing the amendment.
SECTION 10.03. Compliance with Trust Indenture Act; Effect of Supplemental
-----------------------------------------------------------
Indentures. Any supplemental indenture executed pursuant to the provisions of
----------
this Article Ten, and this Indenture as affected by such supplemental indenture,
shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Ten, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 10.04. Notation on Notes. Notes authenticated and delivered after
-------------------
the execution of any supplemental indenture pursuant to the provisions of this
Article Ten may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee and delivered in exchange for the Notes
then outstanding, upon surrender of such Notes then outstanding.
SECTION 10.05. Evidence of Compliance of Supplemental Indenture to Be
------------------------------------------------------
Furnished to the Trustee. The Trustee, subject to the provisions of Sections
------------------------
7.01 and 7.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Ten.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.01. Company May Consolidate, etc., on Certain Terms. Subject to
-----------------------------------------------
the provisions of Section 11.02, nothing contained in this Indenture or in any
of the Notes shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance or lease (or successive sales, conveyances or leases) of all or
substantially all of the property of the Company, to any other corporation
(whether or not affiliated with the Company), if (i) either (A) the Company is
the surviving corporation, or (B) the resulting, surviving or transferee
corporation is organized under the laws of a state of the United States or the
District of Columbia and agrees to pay promptly when due the principal of and
premium, if any, and interest on the Notes, and to assume, perform and observe
all the covenants and conditions of this Indenture to be performed by the
Company, and (ii) immediately after the giving effect to such transaction, no
Event of Default has occurred.
SECTION 11.02. Successor Corporation to Be Substituted. In case of any such
----------------------------------------
consolidation, merger, sale, conveyance or lease and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest on all of the Notes and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue in its own name any or all of
the Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
deliver any Notes which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Notes which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution
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hereof. In the event of any such sale, conveyance or lease, the person named as
the "Company" in the first paragraph of this Indenture or any successor which
shall thereafter have become such in the manner prescribed in this Article
Eleven may be dissolved, wound up and liquidated at any time thereafter and such
person shall be released from its liabilities as obligor and maker of the Notes
and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 11.03. Opinion of Counsel to Be Given to Trustee. The Trustee,
-----------------------------------------
subject to Sections 7.01 and 7.02, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance or lease and any such assumption complies with the provisions
of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01. Discharge of Indenture. When (a) the Company shall deliver to
----------------------
the Trustee for cancellation all Notes theretofore authenticated (other than any
Notes which shall have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not theretofore canceled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year, and the Company
shall deposit with the Trustee, in trust, funds sufficient to pay at maturity
all of the Notes (other than any Notes which shall have been mutilated,
destroyed, lost or stolen and in lieu of or in substitution for which other
Notes shall have been authenticated and delivered) not theretofore canceled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due to such date of maturity, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange of Notes, (ii) rights hereunder of holders to receive
payments of principal of, and premium, if any, and interest on, the Notes and
the other rights, duties and obligations of Noteholders, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and
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(iii) the rights, obligations and immunities of the Trustee hereunder), and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel as required by Section 15.05 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the Notes.
SECTION 12.02. Deposited Monies to Be Held in Trust by Trustee. Subject to
-----------------------------------------------
Section 12.04, all monies deposited with the Trustee pursuant to Section 12.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Notes for the payment of which such
monies have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest and premium, if any.
SECTION 12.03. Paying Agent to Repay Monies Held. Upon the satisfaction and
---------------------------------
discharge of this Indenture, all monies then held by any paying agent of the
Notes (other than the Trustee) shall, upon demand of the Company, be repaid to
it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such monies.
SECTION 12.04. Return of Unclaimed Monies. Any monies deposited with or paid
--------------------------
to the Trustee for payment of the principal of, premium, if any, or interest on
Notes and not applied but remaining unclaimed by the holders of Notes for two
years after the date upon which the principal of, premium, if any, or interest
on such Notes, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on written demand and all liability of the
Trustee shall thereupon cease with respect to such monies; and the holder of any
of the Notes shall thereafter look only to the Company for any payment which
such holder may be entitled to collect.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 13.01. Defeasance in Respect of the Notes. (a) If the Company shall
------------------------------------
provide for the payment of the aggregate outstanding principal amount of and
premium (if any) on the Notes and each installment of interest due and to become
due, as the same shall become due on the Notes (calculated as provided below),
in each case to the date of maturity of the Notes through
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a deposit of funds in an amount which satisfies subsection (i) below, or of
investments in an amount which satisfies subsection (ii) below, or a combination
of funds and investments, each of which component satisfies the appropriate test
as to its respective portion of the total principal, premium (if any) and
interest to be funded (as provided below):
(i) by depositing with the Trustee in trust for the sole benefit of the
Noteholders, funds in an amount sufficient to pay (A) such principal amount of
and premium (if any) on the Notes in full on the date of maturity of the Notes
and (B) the interest on such aggregate principal amount to the date of maturity
of the Notes, taking into account all intervening interest payment dates, for
the period from the date through which interest on the Notes has been paid to
the date of maturity of the Notes; and provided further that such funds, if
invested, shall be invested only in U.S. Government Obligations maturing prior
to the date of maturity of the Notes and such intervening interest payment
dates; or
(ii) by depositing with the Trustee, in trust for the sole benefit of the
Noteholders, U.S. Government Obligations in such aggregate principal amount and
maturing on such dates as will, together with the income or increment to accrue
thereon, but without consideration of any reinvestment of such income or
increment, be sufficient to pay when due (including any intervening interest
payment dates) the amounts set forth in clauses (A) and (B) of subsection (i)
above;
and if the Trustee shall receive (x) an Officers' Certificate, dated the date of
such deposit and in form and substance satisfactory to the Trustee, to the
effect that the amount of the trust deposit will be sufficient to pay when due
on the date of maturity of the Notes and on such intervening interest payment
dates the amounts described in clauses (A) and (B) in subsection (i) above and
that such defeasance is not in anticipation of a Preferred Stock Redemption
Payment and (y) an Opinion of Counsel, dated the date of such deposit and in
form and substance satisfactory to the Trustee, to the effect that the trust
deposit of such funds or investments or both to defease the Company's
obligations in respect of the Notes (A) does not contravene applicable law and
is in accordance with the provisions of this Indenture, (B) describing either a
private ruling concerning the Notes or a published ruling of the Internal
Revenue Service to the effect that Noteholders, or persons in the position of
Noteholders, will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred and (C) does not require that the Company, the trust
or
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the Trustee register as an investment company under the Investment Company Act
of 1940, as amended; and if the Company shall also pay or cause to be paid all
other sums then due and payable hereunder, then the Company's obligations in
respect of the Notes shall cease, determine and be terminated and this Indenture
shall cease to be of further effect (except as specified in Section 13.01(b)).
(b) Notwithstanding the foregoing, this Indenture shall continue to be
effective, regardless of any defeasance specified in this Section 13.01, as to
(i) remaining rights of registration of transfer, substitution and exchange of
Notes, (ii) rights hereunder of holders regarding replacement of stolen, lost or
mutilated Notes, (iii) the obligation of the Company to maintain an office or
agency as provided in Section 4.02, (iv) rights hereunder of Noteholders to
receive payments of principal of and premium, if any, and interest on the Notes
and the other rights, duties and obligations of Noteholders, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the Trustee and
(v) the rights, obligations and immunities of the Trustee hereunder.
(c) The Trustee, on demand of the Company and following the Trustee's receipt
of all documents, funds and investments and payments specified in Section
13.01(a), and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Notes.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 14.01. Indenture and Notes Solely Corporate Obligations. No recourse
------------------------------------------------
for the payment of the principal of or premium, if any, or interest on any Note,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture, or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee or controlling person as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it
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being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Notes.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. Official Acts by Successor Corporation. Any act or proceeding
--------------------------------------
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand which by any
---------------------------
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Notes on the Company may be given or served by
being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to Continental Cablevision, Inc., Attention: Corporate Secretary, The
Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Any notice, direction,
request or demand by any Noteholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Principal Office of the Trustee, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust Department.
SECTION 15.04. Governing Law. This Indenture and each Note shall be deemed
-------------
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of laws principles thereof.
SECTION 15.05. Evidence of Compliance with Conditions Precedent. Upon any
------------------------------------------------
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
-83-
have been complied with and an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 15.06. Legal Holidays. In any case where the date of maturity of
--------------
interest or premium, if any, on or principal of the Notes or the date fixed for
prepayment of any Note will be in The City of New York, New York or the City of
Boston, Massachusetts, a legal holiday or a day on which banking institutions or
any national securities exchanges are authorized or required by law, regulation
or executive order to close ("Legal Holidays"), then payment of such interest on
or principal of the Notes need not be made on such date but may be made on the
next succeeding day not a Legal Holiday with the same force and effect as if
made on the date of maturity or the date fixed for prepayment and no interest
shall accrue for the period from and after such date.
SECTION 15.07. Trust Indenture Act to Control. If and to the extent that any
------------------------------
provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such incorporated provision shall
control.
SECTION 15.08. No Security Interest Created. Nothing in this Indenture or in
----------------------------
the Notes, expressed or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction where property of the
Company or its Subsidiaries is located.
SECTION 15.09. Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Notes, express or implied, shall give to any person, other than the parties
hereto, any paying agent, any Note registrar and their successors hereunder and
the holders of
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Notes, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 15.10. Table of Contents, Headings, etc. The table of contents and
---------------------------------
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.11. Execution in Counterparts. This Indenture may be executed in
-------------------------
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Bank of Montreal Trust Company hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, Continental Cablevision, Inc. has caused this Indenture to
be signed and acknowledged by its Vice President and Treasurer, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary, and Bank of Montreal Trust Company has
caused this Indenture to be signed and acknowledged by one of its Vice
Presidents, and has caused its corporate seal to be affixed hereunto and the
same to be attested by an Assistant Vice President thereof, as of the day and
year first written above.
CONTINENTAL CABLEVISION, INC.
By /s/P. Xxxx Xxxxxx
------------------------------
Name: P. Xxxx Xxxxxx
Title: Vice President and Treasurer
[Seal]
Attest:
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
BANK OF MONTREAL TRUST COMPANY
By /s/ Xxxx X. XxXxxxxxxx
----------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Vice President
[Seal]
Attest:
/s/Xxx Xxxxxxx
----------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
-00-
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
) ss.:
COUNTY OF SUFFOLK )
On the 12th day of December, 1995, before me personally came P. Xxxx Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides at
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx; that he is the Vice President
and Treasurer, of Continental Cablevision, Inc., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/
-------------------------------------
Notary Public
My Commission Expires
[NOTARIAL SEAL]
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of December, 1995, before me personally came Xxxx X.
XxXxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx; that he is a Vice
President of Bank of Montreal Trust Company, the bank described in and which
executed the above instrument; that he knows the seal of said bank; that the
seal affixed to the said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said bank; and that he signed his name
thereto by like authority.
/s/
-----------------------------------
Notary Public
My Commission Expires
[NOTARIAL SEAL]
-88-
EXHIBIT A
Form of Certificate
-------------------
_____________, ___
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
Re: Continental Cablevision, Inc. (the "Company")
8.30% Senior Notes Due 2006 (the "Notes")
---------------------------------------------
Dear Sirs:
This letter relates to U.S. $_____________ principal amount of Notes
represented by a Note (the "Legended Note") which bears a legend outlining
restrictions upon transfer of such Legended Note. Pursuant to Section 2.02 of
the Indenture (the "Indenture") dated as of December 13, 1995 relating to the
Notes, we hereby certify that we are (or we will hold such securities on behalf
of) a person outside the United States to whom the Notes could be transferred in
accordance with Rule 904 of Regulation S promulgated under the U.S. Securities
Act of 1933, as amended. Accordingly, you are hereby requested to exchange the
Legended Note for an unlegended Note representing an identical principal amount
of Notes, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Noteholder]
By:___________________________
Authorized Signature
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EXHIBIT B
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
_____________, ___
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
Re: Continental Cablevision, Inc. (the "Company")
8.30% Senior Notes Due 2006 (the "Notes")
----------------------------------------------
Dear Sirs:
In connection with our proposed purchase of $____________ aggregate principal
amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture dated as of
December 13, 1995 relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on
-90-
its behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the exemption from registration provided by Rule 144 under the Securities
Act, or (F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of the Notes
from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Company such certifications, legal opinions
and other information as you and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.
5. We are acquiring the Notes purchased by us for our own account or for one
or more accounts (each of which is an institutional "accredited investor") as to
each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:___________________________
Authorized Signature
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EXHIBIT C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
_____________, ___
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
Re: Continental Cablevision, Inc. (the "Company")
8.30% Senior Notes Due 2006 (the "Notes")
----------------------------------------------
Dear Sirs:
In connection with our proposed sale of $_____________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the Securities Act of 1933, as amended,
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that
the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the U.S. Securities Act of 1933.
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You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:___________________________
Authorized Signature
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