INDENTURE
Dated as of May 8, 1997
Between
COMCAST CELLULAR HOLDINGS, INC., as Issuer
and
THE BANK OF NEW YORK, as Trustee
____________________
$1,000,000,000
9 1/2% Senior Notes due 2007
9 1/2% Senior Notes due 2007, Series B
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1)................................. 7.10
(a)(2)................................. 7.10
(a)(3)................................. N.A.
(a)(4)................................. N.A.
(a)(5)................................. 7.08, 7.10.
(b).................................... 7.08; 7.10; 10.02
(c).................................... N.A.
Section 311(a).................................... 7.11
(b).................................... 7.11
(c).................................... N.A.
Section 312(a).................................... 2.05
(b).................................... 10.03
(c).................................... 10.03
Section 313(a).................................... 7.06
(b)(1)................................. 7.06
(b)(2)................................. 7.06
(c).................................... 7.06; 10.02
(d).................................... 7.06
Section 314(a).................................... 4.11; 4.12; 10.02
(b).................................... 14.02
(c)(1)................................. 10.04
(c)(2)................................. 10.04
(c)(3)................................. N.A.
(d).................................... N.A.
(e).................................... 10.05
(f).................................... N.A.
Section 315(a).................................... 7.01(b)
(b).................................... 7.05; 10.02
(c).................................... 7.01(a)
(d).................................... 7.01(c)
(e).................................... 6.11
Section 316(a)(last sentence)..................... 2.09
(a)(1)(A).............................. 6.05
(a)(1)(B).............................. 6.04
(a)(2)................................. N.A.
(b).................................... 6.07
(c).................................... 9.04
Section 317(a)(1)................................. 6.08
(a)(2)................................. 6.09
(b).................................... 2.04
Section 318(a).................................... 10.01
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act............19
SECTION 1.03. Rules of Construction........................................20
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..............................................20
SECTION 2.02. Execution and Authentication.................................21
SECTION 2.03. Registrar and Paying Agent...................................22
SECTION 2.04. Paying Agent To Hold Assets in Trust.........................22
SECTION 2.05. Securityholder Lists.........................................22
SECTION 2.06. Transfer and Exchange........................................23
SECTION 2.07. Replacement Securities.......................................23
SECTION 2.08. Outstanding Securities.......................................23
SECTION 2.09. Treasury Securities..........................................24
SECTION 2.10. Temporary Securities.........................................24
SECTION 2.11. Cancellation.................................................24
SECTION 2.12. Defaulted Interest...........................................24
SECTION 2.13. CUSIP Number.................................................25
SECTION 2.14. Deposit of Moneys............................................25
SECTION 2.15. Book-Entry Provisions for Global Securities..................25
SECTION 2.16. Registration of Transfers and Exchanges......................26
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...........................................30
SECTION 3.02. Selection of Securities To Be Redeemed.......................30
SECTION 3.03. Notice of Redemption.........................................30
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SECTION 3.04. Effect of Notice of Redemption...............................31
SECTION 3.05. Deposit of Redemption Price..................................31
SECTION 3.06. Securities Redeemed in Part..................................32
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities........................................32
SECTION 4.02. Maintenance of Office or Agency..............................32
SECTION 4.03. Transactions with Affiliates.................................32
SECTION 4.04. Limitation on Indebtedness...................................33
SECTION 4.05. Disposition of Proceeds of Asset Sales.......................35
SECTION 4.06. Limitation on Restricted Payments............................37
SECTION 4.07. Corporate Existence..........................................40
SECTION 4.08. Payment of Taxes and Other Claims............................40
SECTION 4.09. Notice of Defaults...........................................40
SECTION 4.10. Maintenance of Properties and Insurance......................40
SECTION 4.11. Compliance Certificate.......................................41
SECTION 4.12. Provision of Financial Information...........................41
SECTION 4.13. Waiver of Stay, Extension or Usury Laws......................42
SECTION 4.14. Change of Control Triggering Event...........................42
SECTION 4.15. Limitations on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries..........................43
SECTION 4.16. Designation of Unrestricted Subsidiaries.....................44
SECTION 4.17. Limitation on Liens..........................................45
SECTION 4.18. Redemption of Zero Coupon Notes..............................45
SECTION 4.19. Transactions not Subject to Covenants........................45
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.................................46
SECTION 5.02. Successor Corporation Substituted............................46
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default............................................47
SECTION 6.02. Acceleration.................................................48
SECTION 6.03. Other Remedies...............................................49
SECTION 6.04. Waiver of Past Default.......................................49
SECTION 6.05. Control by Majority..........................................50
SECTION 6.06. Limitation on Suits..........................................50
SECTION 6.07. Rights of Holders To Receive Payment.........................50
SECTION 6.08. Collection Suit by Trustee...................................50
SECTION 6.09. Trustee May File Proofs of Claim.............................51
SECTION 6.10. Priorities...................................................51
SECTION 6.11. Undertaking for Costs........................................51
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee............................................52
SECTION 7.02. Rights of Trustee............................................53
SECTION 7.03. Individual Rights of Trustee.................................54
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SECTION 7.04. Trustee's Disclaimer.........................................54
SECTION 7.05. Notice of Defaults...........................................54
SECTION 7.06. Reports by Trustee to Holders................................54
SECTION 7.07. Compensation and Indemnity...................................54
SECTION 7.08. Replacement of Trustee.......................................55
SECTION 7.09. Successor Trustee by Merger, etc.............................56
SECTION 7.10. Eligibility; Disqualification................................56
SECTION 7.11. Preferential Collection of Claims Against Company............56
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.........................57
SECTION 8.02. Application of Trust Money...................................58
SECTION 8.03. Repayment to Company.........................................58
SECTION 8.04. Reinstatement................................................58
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders...................................59
SECTION 9.02. With Consent of Holders......................................59
SECTION 9.03. Compliance with Trust Indenture Act..........................60
SECTION 9.04. Revocation and Effect of Consents............................60
SECTION 9.05. Notation on or Exchange of Securities........................61
SECTION 9.06. Trustee To Sign Amendments, etc..............................61
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls................................61
SECTION 10.02. Notices.....................................................62
SECTION 10.03. Communications by Holders with Other Holders................63
SECTION 10.04. Certificate and Opinion as to Conditions Precedent..........63
SECTION 10.05. Statements Required in Certificate or Opinion...............63
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar...................64
SECTION 10.07. Governing Law...............................................64
SECTION 10.08. No Recourse Against Others..................................64
SECTION 10.09. Successors..................................................64
SECTION 10.10. Counterpart Originals.......................................64
SECTION 10.11. Severability................................................64
SECTION 10.12. No Adverse Interpretation of Other Agreements...............64
SECTION 10.13. Legal Holidays..............................................64
SIGNATURES................................................................S-1
EXHIBIT A Form of Series A Security.......................................A-1
EXHIBIT B Form of Series B Security.......................................B-1
EXHIBIT C Form of Legend for Global Securities............................C-1
EXHIBIT D Form of Transfer Certificate....................................D-1
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EXHIBIT E Form of Transfer Certificate for Institutional Accredited
Investors...............................................................E-1
EXHIBIT F Form of Transfer Certificate for Regulation S
Transfers...............................................................F-1
INDENTURE dated as of May 8, 1997, between COMCAST CELLULAR
HOLDINGS, INC., a Delaware corporation (the "Company"), and THE BANK OF NEW
YORK, a New York banking corporation, as trustee.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accredited Investor Global Security" see Section 2.01.
"Acquired Indebtedness" means Indebtedness of a Person (a)
assumed in connection with an Acquisition from such Person or (b) existing at
the time such Person becomes a Restricted Subsidiary or is merged or
consolidated with or into the Company or any Restricted Subsidiary.
"Acquired Person" means, with respect to any specified Person,
any other Person which merges with or into or becomes a Subsidiary of such
specified Person.
"Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated or merged with or into the
Company or any Restricted Subsidiary or (ii) any acquisition by the Company or
any Restricted Subsidiary of the assets of any Person which constitute
substantially all of an operating unit or line of business of such Person or
which is otherwise outside of the ordinary course of business.
"Additional Assets" means (i) any property (other than cash,
cash equivalents or securities) to be owned by the Company or a Restricted
Subsidiary and used in the Wireless Telecommunications Business, (ii) the
costs of improving or developing any property owned by the Company or a
Restricted Subsidiary which is used in the Wireless Telecommunications
Business and (iii) Investments in any other Person engaged primarily in the
Wireless Telecommunications Business (including the acquisition from third
parties of Equity Interests of such Person) to the extent that the percentage
of the aggregate Net Pops of the cellular wireless communications systems in
which the Company or any of its Restricted Subsidiaries has ownership
interests represented by cellular wireless telecommunications systems owned
directly by the Company and/or the Restricted Subsidiaries is no less than 80%.
Page=5
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease (that has the effect of a disposition and is not for security
purposes) or other disposition (including, without limitation, any merger,
consolidation or sale-leaseback transaction) to any Person other than the
Company or a Restricted Subsidiary, in one transaction or a series of related
transactions, of (i) any Equity Interest of any Restricted Subsidiary; (ii)
any material license, franchise or other authorization of the Company or any
Restricted Subsidiary; (iii) any assets of the Company or any Restricted
Subsidiary which constitute substantially all of an operating unit or line of
business of the Company or any Restricted Subsidiary; or (iv) any other
property or asset of the Company or any Restricted Subsidiary outside of the
ordinary course of business (including the receipt of proceeds paid on account
of the loss of or damage to any property or asset and awards of compensation
for any asset taken by condemnation, eminent domain or similar proceedings).
For the purposes of this definition, the term "Asset Sale" shall not include
(a) any transaction consummated in compliance with Section 5.01 and the
creation of any Lien not prohibited by Section 4.17; provided, however, that
any transaction consummated in compliance with Section 5.01 involving a sale,
conveyance, assignment, transfer, lease or other disposal of less than all of
the properties or assets of the Company and the Restricted Subsidiaries shall
be deemed to be an Asset Sale with respect to the properties or assets of the
Company and Restricted Subsidiaries that are not so sold, conveyed, assigned,
transferred, leased or otherwise disposed of in such transaction; (b) sales of
property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any Restricted Subsidiary, as the case may be; (c) any transaction consummated
in compliance with Section 4.06; (d) sales of accounts receivable for cash at
fair market value; and (e) any Permitted Receivables Financing. In addition,
solely for purposes of Section 4.05, any sale, conveyance, transfer, lease or
other disposition of any property or asset, whether in one transaction or a
series of related transactions, involving assets with a Fair Market Value not
in excess of $5.0 million in any fiscal year shall be deemed not to be an
Asset Sale.
"Atlantic City MSA License" means the license to operate the
non-wireline cellular telephone system for the Atlantic City, NJ MSA.
"AWACS Investment Holdings, Inc." means AWACS Investment
Holding, Inc., a Delaware corporation, and its successors.
"Bank Credit Facility" means the Credit Agreement, dated as of
September 14, 1995, among CCCI, the lenders named therein, The Bank of New
York, Barclays Bank PLC, The Chase Manhattan Bank, N.A., PNC Bank, National
Association and The Toronto-Dominion Bank, as Arranging Agent, and Toronto
Dominion (Texas), Inc., as Administrative Agent, including any deferrals,
renewals, extensions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto and any agreement providing
therefor, whether by or with the same or any other lender, creditor, group of
lenders or group of creditors, and including related notes, guarantees and
other instruments and agreements executed in connection therewith.
"Bankruptcy Law" see Section 6.01.
Page=6
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person (or comparable governing body), or any
authorized committee of that Board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day (other than a Saturday or Sunday) on
which the Depository and banks in New York are open for business.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on the balance
sheet in accordance with GAAP.
"Cash Equivalents" means: (a) U.S. dollars; (b) securities
issued or directly and fully guaranteed or insured by the U.S. government or
any agency or instrumentality thereof having maturities of not more than one
year from the date of acquisition; (c) certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million; (d) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) entered into with any financial institution
meeting the qualifications specified in clause (c) above; (e) commercial paper
rated P-1, A-1 or the equivalent thereof by Moody's or S&P, respectively, and
in each case maturing within six months after the date of acquisition and (f)
investments in money market funds substantially all of the assets of which
comprise securities described in the foregoing clauses (b)-(e).
"CCCI" means Comcast Cellular Communications, Inc., a Delaware
corporation, and its successors.
"Change of Control" shall mean the occurrence of any of the
following events (whether or not approved by the Board of Directors of the
Company): (a) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act or any successor provision to either of
the foregoing, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act), excluding Permitted Holders, is or becomes the
"beneficial owner," directly or indirectly, of 50% or more of the total voting
power of the Voting Equity Interests of the Company or Comcast Corporation;
(b) the Company consolidates with, or merges with or into, another Person
(other than a Wholly Owned Restricted Subsidiary) or the Company or any
Restricted Subsidiary sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the assets of the Company and the
Restricted Subsidiaries (determined on a consolidated basis) to any Person
(other than a Wholly Owned Restricted Subsidiary), or any Person (other than a
Wholly Owned Restricted Subsidiary) consolidates with, or merges with or into,
the Company, other than in any such event pursuant to a transaction in which
immediately after such transaction the Permitted Holders or the Person or
Persons that "beneficially owned" immediately prior to such transaction,
directly or indirectly, the Voting Equity Interests of the Company
"beneficially own," directly or indirectly, a majority of the total voting
power of the Voting Equity Interests of the surviving or transferee Person;
(c) during any consecutive two-year period, individuals who at the beginning
of such period constituted the Board of Directors of the Company or Comcast
Corporation (together with any new directors whose election by the Board of
Page=7
Directors of the Company or Comcast Corporation or whose nomination for
election by the stockholders of the Company or Comcast Corporation was
approved by a vote of at least a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason (other than by action of the Permitted Holders) to constitute a
majority of the Board of Directors of the Company or Comcast Corporation then
in office; or (d) there shall occur the liquidation or dissolution of the
Company. For purposes of this definition "beneficially own," "beneficial
owner" and "beneficial ownership" shall have the meaning as defined pursuant
to Rules 13d-3 and 13d-5 under the Exchange Act (except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time, upon the happening of an event or otherwise). For
purposes of this definition, all references to Comcast Corporation shall be
deemed to apply only so long as Comcast Corporation controls the Company.
"Change of Control Date" see Section 4.14.
"Change of Control Triggering Event" shall mean the occurrence
of both a Change of Control and a Rating Decline.
"Comcast Cellular" means Comcast Cellular Corporation, a
Delaware corporation and a wholly owned Subsidiary of the Company, and its
successors (other than the Company).
"Comcast Corporation" means Comcast Corporation, a Pennsylvania
corporation, and its successors.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by two Officers or by an Officer and
an Assistant Treasurer or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Income Tax Expense" means, with respect to the
Company for any period, the provision for federal, state, local and foreign
income taxes payable by the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the
Company for any period, without duplication, the sum of (i) the interest
expense of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, including, without
limitation, (a) any amortization of debt discount; (b) the net cost under
Interest Rate Protection Obligations (including any amortization of
discounts); (c) the interest portion of any deferred payment obligation; (d)
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; (e) all capitalized
interest and all accrued interest; and (f) interest-equivalent costs
associated with any Permitted Receivables Financing, whether accounted for as
interest expense or loss on the sale of Receivables and Related Assets; (ii)
the interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and the Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP; and (iii) dividends and distributions in respect of Disqualified Equity
Page=8
Interests actually paid in cash by the Company during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period,
the net income of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, adjusted, to the
extent included in calculating such net income, by excluding, without
duplication, (a) all extraordinary gains or losses and all gains and losses
from the sales or other dispositions of assets out of the ordinary course of
business (net of taxes, fees and expenses relating to the transaction giving
rise thereto) for such period; (b) that portion of such net income derived
from or in respect of Investments in Persons other than Restricted
Subsidiaries, except to the extent actually received in cash by the Company or
any Restricted Subsidiary (subject, in the case of any Restricted Subsidiary,
to the provisions of clause (e) of this definition); (c) the portion of such
net income (or loss) allocable to minority interests in any Person (other than
a Restricted Subsidiary) for such period, except to the extent actually
received in cash by the Company or any Restricted Subsidiary (subject, in the
case of any Restricted Subsidiary, to the provisions of clause (e) of this
definition); (d) the net income (or loss) of any other Person combined with
the Company or any Restricted Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination; (e) the net
income (or loss) of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulations
applicable to that Restricted Subsidiary or its Equity Interest holders; and
(f) the cumulative effect of a change in accounting principles.
"Consolidated Operating Cash Flow" means, with respect to any
period, Consolidated Net Income for such period increased (without
duplication) by the sum of (a) Consolidated Income Tax Expense for such period
to the extent deducted in determining Consolidated Net Income for such period;
(b) Consolidated Interest Expense for such period to the extent deducted in
determining Consolidated Net Income for such period; and (c) depreciation,
amortization and any other non cash items for such period to the extent
deducted in determining Consolidated Net Income for such period of the Company
and the Restricted Subsidiaries, including, without limitation, amortization
of capitalized debt issuance costs for such period, all of the foregoing
determined on a consolidated basis in accordance with GAAP minus non cash
items to the extent they increase Consolidated Net Income (including the
partial or entire reversal of reserves taken in prior periods) for such period.
"control" means, as used with respect to any Person, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or other voting interests, by agreement or
otherwise; provided, however, that beneficial ownership of 10.0% or more of
the voting securities or other voting interests of a Person shall be deemed to
be control (and the terms "controlling," "controlled by" and "under common
control with" shall have correlative meanings).
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 10.02 or such other address as the Trustee
may give notice to the Company.
"Cumulative Operating Cash Flow" means, as at any date of
determination, the positive cumulative Consolidated Operating Cash Flow
Page=9
realized during the period commencing on the Issue Date and ending on the last
day of the most recent fiscal quarter immediately preceding the date of
determination for which consolidated financial information of the Company is
available or, if such cumulative Consolidated Operating Cash Flow for such
period is negative, the negative amount by which cumulative Consolidated
Operating Cash Flow is less than zero.
"Custodian" see Section 6.01.
"Debt to Annualized Operating Cash Flow Ratio" means the ratio
of (a) the Total Consolidated Indebtedness as of the date of calculation (the
"Determination Date") to (b) two times the Consolidated Operating Cash Flow
for the latest two fiscal quarters for which financial information is
available immediately preceding such Determination Date (the "Measurement
Period"). For purposes of calculating Consolidated Operating Cash Flow for the
Measurement Period immediately prior to the relevant Determination Date, (I)
any Person that is a Restricted Subsidiary on the Determination Date (or would
become a Restricted Subsidiary on such Determination Date in connection with
the transaction that requires the determination of such Consolidated Operating
Cash Flow) will be deemed to have been a Restricted Subsidiary at all times
during such Measurement Period, (II) any Person that is not a Restricted
Subsidiary on such Determination Date (or would cease to be a Restricted
Subsidiary on such Determination Date in connection with the transaction that
requires the determination of such Consolidated Operating Cash Flow) will be
deemed not to have been a Restricted Subsidiary at any time during such
Measurement Period, and (III) if the Company or any Restricted Subsidiary
shall have in any manner (x) acquired (including through an Acquisition or the
commencement of activities constituting such operating business) or (y)
disposed of (including by way of an Asset Sale or the termination or
discontinuance of activities constituting such operating business) any
operating business during such Measurement Period or after the end of such
period and on or prior to such Determination Date, such calculation will be
made on a pro forma basis in accordance with GAAP as if, in the case of an
Acquisition or the commencement of activities constituting such operating
business, all such transactions had been consummated on the first day of such
Measurement Period and, in the case of an Asset Sale or termination or
discontinuance of activities constituting such operating business, all such
transactions had been consummated prior to the first day of such Measurement
Period; provided, however, that such pro forma adjustment shall not give
effect to the Consolidated Operating Cash Flow of any Acquired Person
(calculated as such Consolidated Operating Cash Flow would be calculated for
the Company except as follows) to the extent that such Person's net income
would be excluded pursuant to clause (e) of the definition of Consolidated Net
Income.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Securities issued in
the form of one or more Global Securities, The Depository Trust Company or
another Person designated as Depository by the Company, which must be a
clearing agency registered under the Exchange Act.
"Designation" see Section 4.16.
"Designation Amount" see Section 4.16.
"Determination Date" has the meaning set forth in the
definition of "Debt to Annualized Operating Cash Flow Ratio" above.
Page=10
"Disinterested Director" means, with respect to any Person, a
member of the Board of Directors of such Person who does not have any material
direct or indirect financial interest in or with respect to the transaction
being considered.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means any Equity Interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable, at the option of the
holder thereof, in whole or in part, or exchangeable into Indebtedness on or
prior to the earlier of the maturity date of the Securities or the date on
which no Securities remain outstanding; provided, however, that any Equity
Interests that would not constitute Disqualified Equity Interests but for
provisions thereof giving holders thereof the right to require the Company to
repurchase or redeem such Equity Interests upon the occurrence of a change in
control occurring prior to the Final Maturity Date of the Securities shall not
constitute Disqualified Equity Interests if the change in control provisions
applicable to such Equity Interests are no more favorable to the holders of
such Equity Interests than the provisions described under Section 4.14 and
such Equity Interests specifically provide that the Company will not
repurchase or redeem any such Equity Interests pursuant to such provisions
prior to the Company's repurchase of the Securities as are required to be
repurchased pursuant to the provisions described under Section 4.14.
"Equity Interest" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Equity Interests.
"Event of Default" see Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Existing Indebtedness" means any Indebtedness of the Company
and the Restricted Subsidiaries in existence on the Issue Date until such
amounts are repaid.
"Expiration Date" has the meaning set forth in the definition
of "Offer to Purchase" below.
"Fair Market Value" means, with respect to any asset, the price
(after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction; provided, however, that the
Fair Market Value of any such asset or assets shall be determined conclusively
by the Board of Directors of the Company acting in good faith, and shall be
evidenced by resolutions of the Board of Directors of the Company delivered to
the Trustee.
Page=11
"Final Maturity Date" means May 1, 2007.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at
the date of determination.
"Global Security" means a security evidencing all or a portion
of the Securities issued to the Depository or its nominee in accordance with
Section 2.01 and bearing the legend set forth in Exhibit C hereto.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
is pledged.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit. A guarantee shall include, without limitation, any agreement to
maintain or preserve any other person's financial condition or to cause any
other Person to achieve certain levels of operating results.
"Guest Informant" means substantially all of the assets of
Comcast Publishing Holdings Corporation, a Pennsylvania corporation and a
wholly owned Subsidiary of CCCI.
"Holder," "holder of Securities," "Securityholders" or other
similar terms mean the registered holder of any Security.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in
respect of such Indebtedness or other obligation or the recording, as required
pursuant to GAAP or otherwise, of any such Indebtedness or other obligation on
the balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring"
shall have meanings correlative to the foregoing). Neither the accrual of
interest (including the issuance of "pay in kind" securities or similar
instruments in respect of such accrued interest), nor the accretion of
original issue discount, nor the extension of the maturity of any Indebtedness
shall be deemed to be an Incurrence of Indebtedness.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed; (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments; (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable incurred in the ordinary course
of business and payable in accordance with industry practices, or other
accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith); (e) every Capital Lease
Obligation of such Person; (f) every net obligation under interest rate swap
Page=12
or similar agreements or foreign currency hedge, exchange or similar
agreements of such Person; (g) every obligation of the type referred to in
clauses (a) through (f) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise; and (h) any and all deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (a) through (g) above. Indebtedness
(i) shall never be calculated taking into account any cash and cash
equivalents held by such Person; (ii) shall not include obligations of any
Person (x) arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently drawn against
insufficient funds in the ordinary course of business, provided that such
obligations are extinguished within two Business Days of their incurrence
unless covered by an overdraft line, (y) resulting from the endorsement of
negotiable instruments for collection in the ordinary course of business and
consistent with past business practices and (z) under stand-by letters of
credit to the extent collateralized by cash or Cash Equivalents; (iii) which
provides that an amount less than the principal amount thereof shall be due
upon any declaration of acceleration thereof shall be deemed to be incurred or
outstanding in an amount equal to the accreted value thereof at the date of
determination determined in accordance with GAAP; (iv) shall include the
liquidation preference and any mandatory redemption payment obligations in
respect of any Disqualified Equity Interests of the Company or any Restricted
Subsidiary; and (v) shall not include obligations under performance bonds,
performance guarantees, surety bonds and appeal bonds, letters of credit or
similar obligations, incurred in the ordinary course of business and on
ordinary business terms.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Purchasers" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Credit Suisse, First Boston Corporation, Salomon
Brothers Inc, BNY Capital Markets, Inc., Chase Securities Inc., X.X. Xxxxxx
Securities Inc., NationsBanc Capital Markets, Inc. and TD Securities (USA) Inc.
"Institutional Accredited Investor" means 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.
"interest" means, with respect to the Securities, the sum of
any cash interest and any Liquidated Damages on the Securities.
"Interest Payment Date" means each semiannual interest payment
date on May 1 and November 1 of each year, commencing May 1, 1997.
"Interest Rate Protection Obligations" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
Page=13
"Interest Record Date" for the interest payable on any Interest
Payment Date (except a date for payment of defaulted interest) means the April
15 or October 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"Investment" means, with respect to any Person, any direct or
indirect loan, advance, guarantee or other extension of credit or capital
contribution to (by means of transfers of cash or other property or assets to
others or payments for property or services for the account or use of others,
or otherwise), or purchase or acquisition of capital stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any
other Person. The amount of any Investment shall be the original cost of such
Investment, plus the cost of all additions thereto, and minus the amount of
any portion of such Investment repaid to such Person in cash as a repayment of
principal or a return of capital, as the case may be, but without any other
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment. In determining the amount of any
investment involving a transfer of any property or asset other than cash, such
property shall be valued at its fair market value at the time of such
transfer, as determined in good faith by the Board of Directors of the Person
making such transfer.
"Investment Grade" shall mean BBB- or higher by S&P or Baa3 or
higher by Moody's or the equivalent of such ratings by S&P or Moody's. In the
event that the Company shall be permitted to select any other Rating Agency,
the equivalent of such ratings by such Rating Agency shall be used.
"Issue Date" means the original issue date of the Securities.
"Lien" means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including
any conditional sale or capital lease or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security interest).
"Liquidated Damages" has the meaning provided in the
Registration Rights Agreement.
"Management Agreement" means the Management Agreement dated as
of March 5, 1992 between Comcast Corporation and CCCI.
"Maturity Date" means the date, which is set forth on the face
of the Securities, on which the Securities will mature.
"Measurement Period" has the meaning set forth in the
definition of "Debt to Annualized Operating Cash Flow Ratio" above.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor to such rating agency business thereof.
"MSA" has the meaning given to such term in the definition of
"Pops" below.
"Net Cash Proceeds" means the aggregate proceeds in the form of
cash or Cash Equivalents received by the Company or any Restricted Subsidiary
in respect of any Asset Sale, including all cash or Cash Equivalents received
upon any sale, liquidation or other exchange of proceeds of Asset Sales
received in a form other than cash or Cash Equivalents if sold, liquidated or
exchanged within 12 months from the date of receipt thereof, net of (a) the
direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof; (b) provisions for all taxes
(whether or not such taxes will actually be paid or are payable) as a result
of such Asset Sale without regard to the consolidated results of operations of
the Company and the Restricted Subsidiaries, taken as a whole; (c) amounts
Page=14
required to be applied to the repayment of Indebtedness (i) secured by a Lien
on the asset or assets that were the subject of such Asset Sale or (ii)
required to be repaid as a result of such Asset Sale or in order to obtain a
necessary consent to such Asset Sale; (d) amounts deemed, in good faith,
appropriate by the Board of Directors of the Company to be provided as a
reserve, in accordance with GAAP, against any liabilities associated with such
assets which are the subject of such Asset Sale (provided that the amount of
any such reserves shall be deemed to constitute Net Cash Proceeds at the time
such reserves shall have been released or are not otherwise required to be
retained as a reserve); and (e) with respect to Asset Sales by Subsidiaries,
the portion of such cash payments attributable to Persons holding a minority
interest in such Subsidiary.
"Net Pops" of any Person with respect to any system means the
Pops of the MSA or RSA served by such system multiplied by the direct and/or
indirect percentage interest of such Person in the entity licensed or
designated to receive an authorization by the Federal Communications
Commission to construct or operate a system in that MSA or RSA.
"Net Proceeds" means the aggregate net proceeds (including the
fair market value of non-cash proceeds constituting equipment, licenses or other
assets of a type generally used in the Wireless Telecommunications Business in
an amount to be determined by the Board of Directors of the Company for amounts
under $25.0 million and by a financial advisor or appraiser of national
reputation for equal or greater amounts) received by a Person from the sale of
Qualified Equity Interests after payment of out-of-pocket expenses, commission
and discounts incurred in connection therewith.
"New Preferred Stock" means the pay-in-kind preferred stock of
the Company issued to Comcast Corporation, which preferred stock was purchased
by Comcast Corporation with substantially all of the proceeds received by it
in the redemption of the Zero Coupon Notes held by Comcast Corporation.
"Non-U.S. Person" means a person who is not a U.S. Person, as
defined in Regulation S.
"Obligations" means any principal, interest (including, without
limitation, post-petition interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Offer" has the meaning set forth in the definition of "Offer
to Purchase" below.
"Offer to Purchase" means a written offer (the "Offer") sent by
or on behalf of the Company by first-class mail, postage prepaid, to each
Holder at his address appearing in the register for the Securities on the date
of the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "Expiration
Date") of the Offer to Purchase, which shall be not less than 20 Business Days
nor more than 60 days after the date of such Offer, and a settlement date (the
"Purchase Date") for purchase of Securities to occur no later than five
Business Days after the Expiration Date. The Company shall notify the Trustee
at least 15 Business Days (or such shorter period as is acceptable to the
Page=15
Trustee) prior to the mailing of the Offer of the Company's obligation to make
an Offer to Purchase, and the Offer shall be mailed by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain all the information required by applicable
law to be included therein. The Offer shall also contain a description of the
events requiring the Company to make the Offer to Purchase. The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Offer to Purchase.
The Offer shall also state:
(1) the Section of this Indenture pursuant to
which the Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the
outstanding Securities offered to be purchased by the
Company pursuant to the Offer to Purchase (including, if
less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture
requiring the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company
for each $1,000 aggregate principal amount of Securities
accepted for payment (as specified pursuant to this
Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion
of the Securities registered in the name of such Holder and
that any portion of a Security tendered must be tendered in
an integral multiple of $1,000 principal amount at maturity;
(6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or
tendered but not purchased by the Company pursuant to the
Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price
will become due and payable upon each Security being
accepted for payment pursuant to the Offer to Purchase and
that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender all or any
portion of a Security pursuant to the Offer to Purchase will
be required to surrender such Security at the place or
places specified in the Offer prior to the close of business
on the Expiration Date (such Security being, if the Company
or the Trustee so requires, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the holder
thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all
or any portion of Securities tendered if the Company (or its
Page=16
Paying Agent) receives, not later than the close of business
on the fifth Business Day next preceding the Expiration
Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the
Holder tendered, the certificate number of the Security the
Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate
principal amount less than or equal to the Purchase Amount
are duly tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase all such Securities and
(b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall
purchase Securities having an aggregate principal amount
equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 principal amount at
maturity or integral multiples thereof shall be purchased);
and
(12) that in the case of any Holder whose Security
is purchased only in part, the Company shall execute and the
Trustee shall authenticate and deliver to the holder of such
Security without service charge, a new Security or
Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so
tendered. An Offer to Purchase shall be governed by and
effected in accordance with the provisions above pertaining
to any Offer.
"Officer" means the Chairman, any Vice Chairman, the President,
any Vice President, the Chief Financial Officer, the Treasurer, or the
Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary of
the Company complying with Sections 10.04 and 10.05.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"Other Debt" see Section 4.05.
"Participant" has the meaning set forth in Section 2.15.
"Participating Preferred Stock" means the shares of Class B
Participating Redeemable Preferred Stock, par value $.01 per share, of CCCI.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Indebtedness" see Section 4.04.
"Permitted Holder" means any of (i) Comcast Corporation so long
as controlled by any other Permitted Holder or so long as no "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act
Page=17
or any successor provision to either of the foregoing, including any group
acting for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 13d-5(b)(1) under the Exchange Act), excluding Permitted
Holders, is or becomes the "beneficial owner," directly or indirectly, of 50%
or more of the total voting power of the Voting Equity Interests of Comcast
Corporation, (ii) the Xxxxxxx Family, (iii) any of the Permitted Transferees
of the Persons referred to in clauses (i) and (ii), and (iv) any Person or
group controlled by each or any of the Persons referred to in clauses (i)
through (iii). For purposes of this definition "beneficially own," "beneficial
owner" and "beneficial ownership" shall have the meaning as defined pursuant
to Rules 13d-3 and 13d-5 under the Exchange Act (except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time, upon the happening of an event or otherwise).
"Permitted Liens" means (a) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary; provided, however, that such Liens were
not incurred in contemplation of such merger or consolidation and do not
secure any property or assets of the Company or any Restricted Subsidiary
other than the property or assets subject to the Liens prior to such merger or
consolidation; (b) Liens existing on the Issue Date; (c) Liens securing
Indebtedness consisting of Capitalized Lease Obligations, Purchase Money
Indebtedness, mortgage financings, industrial revenue bonds or other monetary
obligations, in each case incurred solely for the purpose of financing all or
any part of the purchase price or cost of construction or installation of
assets used in the business of the Company or the Restricted Subsidiaries, or
repairs, additions or improvements to such assets; provided, however, that (I)
such Liens secure Indebtedness in an amount not in excess of the original
purchase price or the original cost of any such assets or repair, addition or
improvement thereto (plus an amount equal to the reasonable fees and expenses
in connection with the incurrence of such Indebtedness), (II) such Liens do
not extend to any other assets of the Company or the Restricted Subsidiaries
(and, in the case of repair, addition or improvements to any such assets, such
Lien extends only to the assets (and improvements thereto or thereon)
repaired, added to or improved), (III) the Incurrence of such Indebtedness is
permitted by Section 4.04, and (IV) such Liens attach within 365 days of such
purchase, construction, installation, repair, addition or improvement; (d) any
Lien granted by a Restricted Subsidiary on its property or assets to the
extent limitations on the incurrence of such Liens are prohibited by any
agreement to which such Restricted Subsidiary is subject as of the date of
this Indenture; (e) Liens to secure any refinancings, renewals, extensions,
modifications or replacements (collectively, "refinancing") (or successive
refinancings), in whole or in part, of any Indebtedness secured by Liens
referred to in the clauses above so long as such Lien does not extend to any
other property (other than improvements thereto); (f) Liens securing letters
of credit entered into in the ordinary course of business and consistent with
past business practice; (g) Liens on and pledges of the Equity Interests of
any Unrestricted Subsidiary securing any Indebtedness of such Unrestricted
Subsidiary; (h) Liens securing Indebtedness (including all Obligations) under
the Bank Credit Facility; (i) other Liens securing Indebtedness that is
permitted by the terms of this Indenture to be outstanding having an aggregate
principal amount at any one time outstanding not to exceed $20.0 million; and
(j) Liens on Receivables and Related Assets securing Indebtedness or otherwise
permitted to be Incurred, in each case, with a Permitted Receivables
Financing.
"Permitted Receivables Financing" means a transaction or series
of transactions (including amendments, supplements, extensions, renewals,
Page=18
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Restricted Subsidiary and finances such Receivables and Related
Assets through the issuance of indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest
in the Receivables and Related Assets; provided, however, that (i) the Board of
Directors shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Company and the
Securitization Subsidiary, (ii) all sales of Receivables and Related Assets to
or by the Securitization Subsidiary are made at fair market value (as
determined in good faith by the Board of Directors of the Company), (iii) the
financing terms, covenants, termination events and other provisions thereof
shall be market terms (as determined in good faith by the Board of Directors of
the Company), (iv) no portion of the Indebtedness of a Securitization
Subsidiary is guaranteed by or is recourse to the Company or any Restricted
Subsidiary (other than recourse for customary representations, warranties,
covenants and indemnities, none of which shall relate to the collectibility of
the Receivables and Related Assets) and (v) neither the Company nor any
Subsidiary has any obligation to maintain or preserve the Securitization
Subsidiary's financial condition.
"Permitted Transferee" means, with respect to any Person: (a)
in the case of any Person who is a natural person, such individual's spouse or
children, any trust for such individual's benefit or the benefit of such
individual's spouse or children, or any corporation or partnership in which
the direct and beneficial owner of all of the equity interest is such Person
or such individual's spouse or children or any trust for the benefit of such
persons; (b) in the case of any Person who is a natural person, the heirs,
executors, administrators or personal representatives upon the death of such
Person or upon the incompetency or disability of such Person for purposes of
the protection and management of such individual's assets; and (c) in the case
of any Person who is not a natural person, any Affiliate of such Person.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, limited
liability limited partnership, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Physical Securities" has the meaning set forth in Section 2.01.
"Pops" means the estimate of the population of a Metropolitan
Statistical Area ("MSA") or Rural Service Area ("RSA") as derived from the
most recent Rand XxXxxxx Commercial Atlas & Marketing Guide or if such
statistics are no longer printed in the Rand XxXxxxx Commercial Atlas &
Marketing Guide or the Rand XxXxxxx Commercial Atlas & Marketing Guide is no
longer published, the most recent Xxxxxxxx Market Service or if such
statistics are no longer printed in the Xxxxxxxx Market Service or the
Xxxxxxxx Market Service is no longer published, such other nationally
recognized source of such information.
"Preferred Equity Interest" in any Person means an Equity
Interest of any class or classes (however designated) which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over Equity Interests of any other class in such Person.
Page=19
"principal" of a debt security means the principal of the
security, plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend initially set forth
on the Series A Securities in the form set forth on Exhibit A hereto.
"Public Equity Offering" means an underwritten public offering
of common equity of the Company pursuant to an effective registration
statement filed under the Securities Act (excluding registration statements
filed on Form S-8).
"Purchase Agreement" means the Purchase Agreement dated as of
May 5, 1997 between the Company and the Initial Purchasers.
"Purchase Amount" has the meaning set forth in the definition
of "Offer to Purchase" above.
"Purchase Date" has the meaning set forth in the definition of
"Offer to Purchase" above.
"Purchase Money Indebtedness" means Indebtedness of the Company
or any Restricted Subsidiary Incurred for the purpose of financing all or any
part of the purchase price or the cost of construction or improvement of any
property, provided that the aggregate principal amount of such Indebtedness
does not exceed the lesser of the Fair Market Value of such property or such
purchase price or cost, including any refinancing of such indebtedness that
does not increase the aggregate principal amount (or accreted amount, if less)
thereof as of the date of refinancing.
"Purchase Price" has the meaning set forth in the definition of
"Offer to Purchase" above.
"QIB Global Security" see Section 2.01.
"Qualified Equity Interest" in any Person means any Equity
Interest in such Person other than any Disqualified Equity Interest (it being
understood that the New Preferred Stock shall in no event constitute Qualified
Equity Interest).
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act.
"Rating Agencies" shall mean (i) S&P and (ii) Xxxxx'x and (iii)
if S&P or Xxxxx'x or both shall not make a rating of the Securities publicly
available, a nationally recognized securities rating agency or agencies, as
the case may be, selected by the Company, which shall be substituted for S&P or
Xxxxx'x or both, as the case may be.
"Rating Category" shall mean (i) with respect to S&P, any of
the following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories); (ii) with respect to Xxxxx'x, any of the following categories:
Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (iii) the
equivalent of any such category of S&P or Xxxxx'x used by another Rating
Agency. In determining whether the rating of the Securities has decreased by
one or more gradations, gradations within Rating Categories (+ and - for S&P;
1, 2 and 3 for Xxxxx'x; or the equivalent gradations for another Rating
Agency) shall be taken into account (e.g., with respect to S&P, a decline in a
Page=20
rating from BB to BB-, as well as from BB- to B+, will constitute a decrease
of one gradation).
"Rating Date" shall mean that date which is 90 days prior to
the earlier of (x) a Change of Control and (y) public notice of the occurrence
of a Change of Control or of the intention by the Company or any Permitted
Holder to effect a Change of Control.
"Rating Decline" shall mean the occurrence on, or within 90
days after, the date of public notice of the occurrence of a Change of Control
or the intention by the Company or any Permitted Holder to effect a Change of
Control (which period shall be extended so long as the rating of the
Securities is under publicly announced consideration for possible downgrade by
any of the Rating Agencies) of any of (a) in the event the Securities are
rated by both Xxxxx'x and S&P on the Rating Date as Investment Grade, the
rating of the Securities by either Rating Agency shall be below Investment
Grade; (b) in the event the Securities are rated by either, but not both, of
the Rating Agencies on the Rating Date as Investment Grade, the rating of the
Securities by both Rating Agencies shall be below Investment Grade; or (c) in
the event the Securities are rated below Investment Grade by both Rating
Agencies on the Rating Date, the rating of the Securities by either Rating
Agency shall be decreased by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
"Receivables and Related Assets" means accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case relating to such receivables, including interests in
merchandise or goods, the sale or lease of which gave rise to such receivable,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed hereto as Exhibit A or
Exhibit B hereto.
"Registered Exchange Offer" means the offer to exchange the
Series B Securities for all of the outstanding Series A Securities in
accordance with the Registration Rights Agreement.
"Registrar" see Section 2.03.
"Registration" means the Registered Exchange Offer by the
Company or other registration of the Series A Securities under the Securities
Act pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of May 8, 1997 between the Company and the Initial
Purchasers.
"Registration Statement" means the registration statement(s) as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
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"Regulation S Global Security" see Section 2.01.
"Required Filing Date" see Section 4.12.
"Restricted Investment" means an Investment in any Person that
is, or as a result of such Investment becomes, an Affiliate of the Company
other than an Investment in (a) the Company, (b) a Restricted Subsidiary, (c)
a Person that immediately after giving effect to such Investment becomes a
Restricted Subsidiary or (d) any Person that is an Affiliate of the Company
(other than an Unrestricted Subsidiary) solely because of the control of such
Person by the Company and/or one or more of the Restricted Subsidiaries.
"Restricted Payments" see Section 4.06.
"Restricted Security" has the meaning set forth in Rule
144(a)(3) under the Securities Act or any successor to such rule; provided,
that the Trustee shall be entitled to request and conclusively rely upon an
Opinion of Counsel with respect to whether any Security is a Restricted
Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated as an Unrestricted Subsidiary pursuant to Section
4.16. Any such designation may be revoked by a resolution of the Board of
Directors of the Company delivered to the Trustee, subject to the provisions of
such covenant.
"Revocation" see Section 4.16.
"Xxxxxxx Family" means: (i) Xxxxx X. Xxxxxxx or his spouse;
(ii) a lineal descendant of Xxxxx X. Xxxxxxx (whether by the whole or half
blood); or (iii) a trust established for the benefit of any of Xxxxx X.
Xxxxxxx, his spouse and/or a lineal descendant or descendants of Xxxxx X.
Xxxxxxx (whether by the whole or half blood).
"RSA" has the meaning given to such term in the definition of
Pops.
"Rule 144A" means Rule 144A under the Securities Act or any
successor thereto.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor to such rating agency business thereof.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B
Securities treated as a single class of securities, as amended or supplemented
from time to time in accordance with the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Securities Amount" see Section 4.05.
"Securities Portion of Unutilized Net Cash Proceeds" see
Section 4.05.
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"Securitization Subsidiary" means a Wholly Owned Restricted
Subsidiary which is established for the limited purpose of acquiring and
financing Receivables and Related Assets and engaging in activities ancillary
thereto.
"Series A Securities" means the 9 1/2% Senior Notes due 2007 of
the Company issued pursuant to this Indenture and sold pursuant to the
Purchase Agreement.
"Series B Securities" means the 9 1/2% Senior Notes due 2007,
Series B, of the Company to be issued pursuant to this Indenture in exchange
for the Series A Securities pursuant to the Registered Exchange Offer and the
Registration Rights Agreement.
"Significant Restricted Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its Subsidiaries
that constitute Restricted Subsidiaries, (i) for the most recent fiscal year
of the Company accounted for more than 10.0% of the consolidated revenues of
the Company and the Restricted Subsidiaries or (ii) as of the end of such
fiscal year, owned more than 10.0% of the consolidated assets of the Company
and the Restricted Subsidiaries, all as set forth on the consolidated
financial statements of the Company and the Restricted Subsidiaries for such
year prepared in conformity with GAAP.
"Stated Maturity" means, when used with respect to any security
or any installment of interest thereon, the date specified in such security as
the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the
Company which is expressly subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which the outstanding Voting Equity Interests having at least a
majority of the votes entitled to be cast in the election of directors shall
at the time be owned, directly or indirectly, by such Person, or (b) any other
Person of which at least a majority of Voting Equity Interests are at the
time, directly or indirectly, owned by such first named Person.
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"Tax Sharing Agreement" means the tax sharing agreement dated
as of March 5, 1992 among Comcast Corporation, Comcast Cellular and CCCI and
its Subsidiaries, as in effect on the Issue Date or as may be amended to
include the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section Section 77aaa-77bbbb), as amended, as in effect on the date of this
Indenture, except as provided in Section 9.03.
"Total Consolidated Indebtedness" means, as at any date of
determination, an amount equal to the aggregate amount of all Indebtedness and
Disqualified Equity Interests of the Company and the Restricted Subsidiaries
outstanding as of such date of determination.
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"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture
and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar
to those performed by the persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"United States Government Obligations" see Section 8.01.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to Section 4.16. Any such designation may be
revoked by a resolution of the Board of Directors of the Company delivered to
the Trustee, subject to the provisions of such covenant.
"Unutilized Net Cash Proceeds" see Section 4.05(a).
"U.S. Person" means a "U.S. person" as defined in Rule 902
under the Securities Act or any successor to such Rule.
"Voting Equity Interests" means Equity Interests in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect the Board of Directors or other
governing body of such corporation or Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Voting Equity Interests (other than
directors' qualifying shares) of which are owned, directly or indirectly, by
the Company.
"Wireless Telecommunications Business" means the development,
management and operation of cellular telephone systems, paging systems and
personal communication systems and activities reasonably related thereto,
including, without limitation, retail distribution thereof.
"Zero Coupon Indenture" has the meaning set forth in Section
4.18.
"Zero Coupon Notes" has the meaning set forth in Section 4.18.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
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"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
in effect from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture.
The Series B Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit B hereto, which is
hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company and the Trustee shall approve the form of
the Securities and any notation, legend or endorsement on them. Each Security
shall be dated the date of its issuance and shall show the date of its
authentication.
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Securities initially offered and sold by the Initial Purchasers
(i) to Qualified Institutional Buyers in reliance on Rule 144A or (ii) in
offshore transactions in reliance on Regulation S shall, unless the applicable
Holder requests Securities in the form of certificated Securities in
registered form ("Physical Securities"), which shall be in substantially the
form set forth in Exhibit A hereto, be issued initially in the form of one or
more permanent Global Securities in registered form, substantially in the form
set forth in Exhibit A hereto, deposited with the Trustee, as custodian for
the Depository, and shall bear the legend set forth on Exhibit C hereto.
Securities initially offered and sold by the Initial Purchasers to
Institutional Accredited Investors shall be in the form of Physical
Securities, substantially in the form set forth in Exhibit A hereto. One or
more separate Global Securities shall be issued to represent Securities held by
(i) Qualified Institutional Buyers (a "QIB Global Security"), (ii)
Institutional Accredited Investors (an "Accredited Investor Global Security")
and (iii) Persons acquiring Securities in offshore transactions in reliance on
Regulation S (a "Regulation S Global Security"). The Company shall cause the
QIB Global Securities, Accredited Investor Global Securities and Regulation S
Global Securities to have separate CUSIP numbers.
Upon consummation of the Registration, Series B Securities may
be issued in the form of one or more permanent Global Securities in registered
form, substantially in the form set forth in Exhibit B hereto, deposited with
the Trustee, as custodian for the Depository, and shall bear the legend set
forth on Exhibit C hereto.
The aggregate principal amount of any Global Security may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depository, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual
or facsimile signature.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Series A Securities for
original issue in the aggregate principal amount not to exceed $1,000,000,000
and (ii) Series B Securities from time to time only in exchange for a like
principal amount of Series A Securities in accordance with the Registration
Rights Agreement, in each case upon a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall specify the
amount of Securities to be authenticated, the series of Securities and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $1,000,000,000,
except as provided in Section 2.07. Upon receipt of a written order of the
Company in the form of an Officers' Certificate, the Trustee shall authenticate
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Securities in substitution for Securities originally issued to reflect any
name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
and Affiliates of the Company.
The Securities shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and
(c) notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register or registers of the Securities
and of their transfer and exchange. The Company, upon notice to the Trustee,
may appoint one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. Except
as provided herein, the Company, or any Subsidiary may act as Paying Agent,
Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Securities, and shall notify the
Trustee of any Default by the Company in making any such payment. The Company
at any time may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee may at any
time during the continuance of any payment Default, upon written request to a
Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to
the Trustee of all assets that shall have been delivered by the Company to the
Paying Agent (if other than the Company), the Paying Agent shall have no
further liability for such assets. If the Company, any Subsidiary or any of
their respective Affiliates acts as Paying Agent, it shall, on or before each
due date of the principal of or interest on the Securities, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
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pay the principal or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee before each Interest Record Date and at such other
times as the Trustee may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for an
equal principal amount of Securities of other authorized denominations of the
same series, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06,
4.05, 4.14 or 9.05). The Registrar or co-Registrar shall not be required to
register the transfer or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of business on the day of
such mailing and (ii) selected for redemption in whole or in part pursuant to
Article Three hereof, except the unredeemed portion of any Security being
redeemed in part.
Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee, and any Agent of the Company shall
treat the person in whose name the Security is registered as the owner thereof
for all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such Agent shall be affected by notice to the
contrary. Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depository
(or its agent), and that ownership of a beneficial interest in a Global
Security shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for replacement of
Securities are met. Such Holder must provide an indemnity bond or other
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indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee and any Agent from any loss which any of them
may suffer if a Security is replaced and evidence to their satisfaction of the
apparent loss, destruction or theft of such Security. The Company may charge
such Holder for its reasonable out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as
not outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity
Date the Paying Agent holds money sufficient to pay all of the principal and
interest due on the Securities payable on that date, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any of its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
that a Trust Officer of the Trustee actually knows are so owned shall be
disregarded.
The Trustee may require an Officers' Certificate listing
Securities owned by the Company or its Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate upon receipt of a written order of the
Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Page=29
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation and deliver to the Company such cancelled
Securities for disposal. Subject to Section 2.07, the Company may not issue
new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation. If the Company shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of principal or interest
on the Securities, it shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate per annum borne by the Securities, to the
extent lawful.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use one or more
"CUSIP" numbers and the Trustee shall use the appropriate CUSIP number in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed in the notice or on
the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 a.m. New York City time on each Interest Payment
Date, Redemption Date, Purchase Date and the Final Maturity Date, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Purchase Date or Final Maturity Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date, Redemption Date, Purchase Date or Final
Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Exhibit C hereto.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under such Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of such Global Security 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 Depository or impair, as between
the Depository and Participants, the operation of customary practices
governing the exercise of the rights of a Holder of any Security.
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(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the provisions
of Section 2.16. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global
Securities if (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for any Global Security and a successor
Depository 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 Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon
written instructions from the Company authenticate and make available for
delivery, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in the Global Securities, an equal aggregate
principal amount of Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) of this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When
Physical Securities are presented to the Registrar or co-Registrar with a
request:
(i) to register the transfer of the Physical
Securities; or
(ii) to exchange such Physical Securities for an
equal principal amount of Physical Securities of other
authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the
Physical Securities presented or surrendered for registration of transfer or
exchange:
(I) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
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(II) in the case of Physical Securities of Series A
Securities, such Physical Securities shall be accompanied,
in the sole discretion of the Company, by the following
additional information and documents, as applicable:
(A) if such Physical Security is being delivered
to the Registrar or co-Registrar by a Holder for
registration in the name of such Holder, without transfer,
a certification from such Holder to that effect
(substantially in the form of Exhibit D hereto); or
(B) if such Physical Security is being
transferred to a Qualified Institutional Buyer in
accordance with Rule 144A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such Physical Security is being
transferred to an Institutional Accredited Investor,
delivery of a certification to that effect (substantially
in the form of Exhibit D hereto) and a transferee
certificate for Institutional Accredited Investors
substantially in the form of Exhibit E hereto and an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(D) if such Physical Security is being
transferred in reliance on Regulation S, delivery of a
certification to that effect (substantially in the form of
Exhibit D hereto) and a transferor certificate for
Regulation S transfers substantially in the form of Exhibit
F hereto and an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such Physical Security is being
transferred in reliance on Rule 144 under the Securities
Act, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and an
Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(F) if such Physical Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect (substantially in the form of
Exhibit D hereto) and an Opinion of Counsel reasonably
acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for a
Beneficial Interest in a Global Security. A Physical Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Registrar or co-Registrar of a Physical Security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Registrar
or co-Registrar, together with:
Page=32
(A) in the case of Series A Securities, certification,
substantially in the form of Exhibit D hereto, that
such Physical Security is being transferred (I) to a
Qualified Institutional Buyer, (II) to an Accredited
Investor or (III) in an offshore transaction in
reliance on Regulation S and, with respect to (II) or
(III), an Opinion of Counsel reasonably acceptable to
the Company to the effect that such transfer is in
compliance with the Securities Act; and
(B) written instructions directing the Registrar or
co-Registrar to make, or to direct the Depository to
make, an endorsement on the applicable Global Security
to reflect an increase in the aggregate amount of the
Securities represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar
or co-Registrar, the principal amount of Securities represented by the
applicable Global Security to be increased accordingly. If no Global Security
representing Securities held by Qualified Institutional Buyers, Institutional
Accredited Investors or Persons acquiring Securities in offshore transactions
in reliance on Regulation S, as the case may be, is then outstanding, the
Company shall issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate such a Global Security
in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depository therefor. Upon receipt by the Registrar or Co-Registrar of written
instructions, or such other instruction as is customary for the Depository,
from the Depository or its nominee, requesting the registration of transfer
of an interest in a QIB Global Security, an Accredited Investor Global
Security or Regulation S Global Security, as the case may be, to another type
of Global Security, together with the applicable Global Securities (or, if the
applicable type of Global Security required to represent the interest as
requested to be transferred is not then outstanding, only the Global Security
representing the interest being transferred), the Registrar or Co-Registrar
shall cancel such Global Securities (or Global Security) and the Company shall
issue and the Trustee shall, upon written instructions from the Company in
accordance with Section 2.02, authenticate new Global Securities of the types
so cancelled (or the type so cancelled and applicable type required to
represent the interest as requested to be transferred) reflecting the
applicable increase and decrease of the principal amount of Securities
represented by such types of Global Securities, giving effect to such
transfer. If the applicable type of Global Security required to represent the
interest as requested to be transferred is not outstanding at the time of such
request, the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate a
new Global Security of such type in principal amount equal to the principal
amount of the interest requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global Security for
a Physical Security.
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(i) Any Person having a beneficial interest in a
Global Security may upon request exchange such beneficial interest
for a Physical Security. Upon receipt by the Registrar or co-
Registrar of written instructions, or such other form of instructions
as is customary for the Depository, from the Depository or its
nominee on behalf of any Person having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depository or
the Person designated by the Depository as having such a beneficial
interest containing registration instructions and, in the case of any
such transfer or exchange of a beneficial interest in Series A
Securities, the following additional information and documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the
beneficial owner, a certification from such Person to
that effect (substantially in the form of Exhibit D
hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule
l44A, a certification to that effect (substantially in
the form of Exhibit D hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the form
of Exhibit D hereto) and a transferee certificate for
Institutional Accredited Investors substantially in the
form of Exhibit E hereto and an Opinion of Counsel
reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities
Act; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification
to that effect (substantially in the form of Exhibit D
hereto) and a transferor certificate for Regulation S
transfers substantially in the form of Exhibit F hereto
and an Opinion of Counsel reasonably satisfactory to
the Company to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery
of a certification to that effect (substantially in the
form of Exhibit D hereto) and an Opinion of Counsel
reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities
Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to
that effect (substantially in the form of Exhibit D
hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act,
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then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository
and the Registrar or co-Registrar, the aggregate principal amount of
the applicable Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and
deliver to the transferee a Physical Security in the appropriate
principal amount.
(ii) Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.16(d) shall
be registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar or co-
Registrar in writing. The Registrar or co-Registrar shall deliver
such Physical Securities to the Persons in whose names such Physical
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture, a Global
Security may not be transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar or co-Registrar
shall deliver only Securities that bear the Private Placement Legend unless,
and the Trustee is hereby authorized to deliver Securities without the Private
Placement Legend if, (i) there is delivered to the Trustee an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee 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 or
(ii) such Security has been sold pursuant to an effective registration
statement under the Securities Act (including pursuant to a Registration).
(g) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Participants or beneficial owners of interest in any Global Security)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
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letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 5 or 6 of the Securities at the applicable redemption price set
forth thereon, it shall notify the Trustee in writing of the Redemption Date
and the principal amount of Securities to be redeemed. The Company shall give
such notice to the Trustee at least 45 days before the Redemption Date (unless
a shorter notice shall be agreed to by the Trustee in writing), together with
an Officers' Certificate stating that such redemption will comply with the
conditions contained herein.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant
to paragraph 5 or 6 of the Securities, the Trustee shall select the Securities
to be redeemed in compliance with the requirements of the national securities
exchange, if any, on which the Securities are listed or, if the Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
or in such other manner as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection from the Securities then outstanding, subject
to redemption and not previously called for redemption.
The Trustee may select for redemption pursuant to paragraph 5
or 6 of the Securities portions of the principal amount of Securities that
have denominations equal to or larger than $1,000 principal amount.
Securities and portions of them the Trustee so selects shall be in amounts of
$1,000 principal amount or integral multiples thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail to
each Holder whose Securities are to be redeemed at such Holder's registered
address; provided, however, that notice of a redemption pursuant to paragraph
6 of the Securities shall be mailed to each Holder whose Securities are to be
redeemed no later than 60 days following the consummation of the last Public
Equity Offering resulting in gross cash proceeds to the Company, when
aggregated with all prior Public Equity Offerings, of at least $100.0 million.
Each notice of redemption shall identify the Securities to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the
Securities are to be surrendered for redemption;
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(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to
accrete on and after the Redemption Date and the only remaining right
of the Holders is to receive payment of the redemption price upon
surrender to the Paying Agent; and
(6) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new Security
or Securities in principal amount equal to the unredeemed portion
thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the
Company's expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price, plus accrued interest thereon, if any, to the Redemption
Date, but interest installments whose maturity is on or prior to such
Redemption Date shall be payable to the Holders of record at the close of
business on the relevant Interest Record Date.
SECTION 3.05. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent (or if the Company is its own
Paying Agent, shall, on or before the Redemption Date, segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Company to deposit with the Paying Agent money sufficient
to pay the redemption price thereof, the principal and accrued and unpaid
interest, if any, thereon shall, until paid or duly provided for, bear
interest as provided in Sections 2.12 and 4.01 with respect to any payment
default.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
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The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities and the Registration
Rights Agreement. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary or an Affiliate of the Company) holds on that date money designated
for and sufficient to pay the installment in full and is not prohibited from
paying such money to the Holders of the Securities pursuant to the terms of
this Indenture.
The Company shall pay cash interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay cash
interest on overdue installments of interest at the same rate per annum borne
by the Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.03. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02 hereof. The Company hereby initially
designates the Trustee at its address set forth in Section 10.02 hereof as its
office or agency in The Borough of Manhattan, The City of New York, for such
purposes.
SECTION 4.03. Transactions with Affiliates.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, enter into any transaction
(or series of related transactions) with any of their respective Affiliates or
any officer or director of the Company or any Restricted Subsidiary (each an
"Affiliate Transaction"), unless such Affiliate Transaction is on terms which
are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than would be available in a comparable transaction with an
unaffiliated third party. For any such transaction that involves an amount in
excess of $10.0 million, the Company shall deliver to the Trustee an Officers'
Certificate stating that the transaction satisfies the above criteria and a
majority of the Disinterested Directors, or, if there are no Disinterested
Directors, a majority of the members of the Board of Directors of such Person,
shall determine that the transaction satisfies the above criteria and shall
evidence such a determination by a Board Resolution filed with the Trustee.
Notwithstanding the foregoing, the restrictions set forth in
this covenant shall not apply to (i) transactions with or among the Company
and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(ii) customary directors' fees, indemnification and similar arrangements,
employee salaries, bonuses or employment agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer, director or
employee of the Company entered into in the ordinary course of business
(including customary benefits thereunder) and payments under any
indemnification arrangements permitted by applicable law; (iii) transactions
pursuant to the Management Agreement and the Tax Sharing Agreement, each as in
effect on the Issue Date, and any transactions undertaken pursuant to any
other contractual obligations in existence on the Issue Date (as in effect on
the Issue Date), or as any such agreement (including the Management Agreement
and the Tax Sharing Agreement) may be amended, modified or supplemented after
Page=38
the Issue Date in a manner not materially adverse to the Holders (it being
understood that the increase of the fee payable to Comcast Corporation
pursuant to the Management Agreement or any amendment thereof to 1.5% of
revenues of the Company shall be permitted by this covenant); (iv) the
entering into of a tax-sharing agreement or payments pursuant thereto, between
the Company and any other Person with which the Company is required or
permitted to file a consolidated tax return or with which the Company is or
could be part of a consolidated group for tax purposes, which payments are not
in excess of the tax liabilities attributable solely to the Company and the
Restricted Subsidiaries (as a consolidated group); (v) the issue and sale by
the Company to its Affiliates of Qualified Equity Interests; (vi) any
Restricted Payments made in compliance with Section 4.06; (vii) loans and
advances to officers, directors and employees of the Company and the
Restricted Subsidiaries for travel, entertainment, moving and other relocation
expenses, in each case made in the ordinary course of business and consistent
with past business practices; (viii) roaming and switching agreements
customary in the industry; (ix) any transaction in the ordinary course of
business or approved by a majority of the Disinterested Directors (or, if
there are no Disinterested Directors, a majority of the members of the Board of
Directors of such Person) of the Company between the Company or any Restricted
Subsidiary and any Affiliate of the Company controlled by the Company (other
than a Wholly Owned Restricted Subsidiary) that is a joint venture or similar
entity primarily engaged in the Wireless Telecommunications Business (provided
that no Person or entity that has an economic interest in Comcast Corporation
or any of its Affiliates has an interest in such joint venture other than
through the Company or any Restricted Subsidiary); (x) the pledge of Equity
Interests of Unrestricted Subsidiaries to support the Indebtedness thereof;
(xi) transactions in connection with a Permitted Receivables Financing; (xii)
any transaction in the ordinary course of business and on ordinary business
terms between the Company or any Restricted Subsidiary and any Affiliate
thereof engaged in the Wireless Telecommunications Business; (xiii) the
transfer to the Company or any of its Subsidiaries by Comcast Corporation of
the 10-MHz PCS licenses covering the Philadelphia, PA MTA and the Allentown,
PA BTA for $17.5 million; and (xiv) the payment of accrued management fees to
Comcast Corporation in an amount not to exceed $17.0 million.
The Company's obligations to comply with this covenant will
terminate if and when the Securities are rated Investment Grade by both
Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the
Trustee certifying as to the same.
SECTION 4.04. Limitation on Indebtedness.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any Disqualified Equity Interests
except for Permitted Indebtedness; provided, however, that the Company or any
Restricted Subsidiary (other than Comcast Cellular so long as it is a
Subsidiary of the Company) may Incur Indebtedness and the Company or any
Restricted Subsidiary (other than Comcast Cellular so long as it is a
Subsidiary of the Company) may issue Disqualified Equity Interests if, at the
time of and immediately after giving pro forma effect to such Incurrence of
Indebtedness or issuance of Disqualified Equity Interests and the application
of the proceeds therefrom, the Debt to Annualized Operating Cash Flow Ratio
would be less than or equal to 8.50 to 1.0.
(b) The foregoing limitations of clause (a) of this covenant
will not apply to the Incurrence by the Company or any Restricted Subsidiary
(other than Comcast Cellular so long as it is a Subsidiary of the Company) of
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any of the following (collectively, "Permitted Indebtedness"), each of which
shall be given independent effect:
(i) Indebtedness under the Securities;
(ii) Existing Indebtedness;
(iii) Indebtedness under the Bank Credit Facility in
an aggregate principal amount at any one time outstanding not to
exceed the sum of (A) $500.0 million, plus (B) any amounts
outstanding under the Bank Credit Facility that utilize subparagraph
(xi) of this Section 4.04(b) (less the amount of net proceeds which
have been received in connection with a Permitted Receivables
Financing; provided that such reduction shall apply only
for so long as a Permitted Receivables Financing is in effect);
(iv) (x) Indebtedness of any Restricted Subsidiary
owed to and held by the Company or any Restricted Subsidiary and (y)
Indebtedness of the Company owed to and held by any Restricted
Subsidiary; provided, however, that an Incurrence of Indebtedness
that is not permitted by this clause (iv) shall be deemed to have
occurred upon (I) any sale or other disposition of any Indebtedness
of the Company or any Restricted Subsidiary referred to in this
clause (iv) to any Person other than the Company or any Restricted
Subsidiary; (II) any sale or other disposition of Equity Interests
of any Restricted Subsidiary which holds Indebtedness of the Company
or another Restricted Subsidiary such that such Restricted Subsidiary
ceases to be a Restricted Subsidiary; or (III) the designation of a
Restricted Subsidiary which holds Indebtedness of the Company or any
other Restricted Subsidiary as an Unrestricted Subsidiary;
(v) Interest Rate Protection Obligations relating
to (A) Indebtedness of the Company or any Restricted Subsidiary
(which Indebtedness is otherwise permitted to be Incurred under this
covenant) or (B) Indebtedness for which a lender has provided a
commitment in an amount reasonably anticipated to be Incurred by the
Company or any Restricted Subsidiary in the 12 months after such
Interest Rate Protection Obligation has been Incurred; provided,
however, that the notional principal amount of such Interest Rate
Protection Obligations does not exceed the principal amount of the
Indebtedness (including Indebtedness subject to commitments) to which
such Interest Rate Protection Obligations relate;
(vi) Purchase Money Indebtedness and Capital Lease
Obligations which do not exceed $15.0 million in the aggregate at any
one time outstanding;
(vii) Indebtedness or Disqualified Equity Interests
to the extent representing a replacement, renewal, refinancing or
extension (collectively, a "refinancing") of outstanding Indebtedness
or Disqualified Equity Interests Incurred in compliance with the Debt
to Annualized Operating Cash Flow Ratio of Section 4.04(a) or clause
(i), (ii), (ix) or (x) of this Section 4.04(b); provided, however,
that (1) any such refinancing shall not exceed the sum of the
principal amount (or accreted amount (determined in accordance with
GAAP), if less) of the Indebtedness or Disqualified Equity Interests
being refinanced, plus the amount of accrued interest or dividends
thereon, plus the amount of any reasonably determined prepayment
premium necessary to accomplish such refinancing and such reasonable
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fees and expenses incurred in connection therewith; (2)
Indebtedness representing a refinancing of Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being
refinanced; and (3) Indebtedness that is pari passu with the
Securities may be refinanced only with Indebtedness that is made pari
passu with or subordinate in right of payment to the Securities,
Subordinated Indebtedness may be refinanced only with Subordinated
Indebtedness or Disqualified Equity Interests, and Disqualified
Equity Interests may be refinanced only with Disqualified Equity
Interests;
(viii) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments, in connection with the
disposition of assets permitted under this Indenture, in a principal
amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such
disposition;
(ix) Indebtedness of a Securitization Subsidiary pursuant
to a Permitted Receivables Financing; provided that after giving
effect to the Incurrence thereof, the Company could Incur at least
$1.00 of Indebtedness under clause (iii) of this Section 4.04(b);
(x) the New Preferred Stock; and
(xi) in addition to the items referred to in
clauses (i) through (x) above, Indebtedness (including any
Indebtedness under the Bank Credit Facility that utilizes this
subparagraph (xi)) having an aggregate principal amount not to exceed
$50.0 million at any time outstanding.
(c) For purposes of determining any particular amount of
Indebtedness under this covenant, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included. For purposes of
determining compliance with this covenant, (i) in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
provided for in Section 4.04(a) or described in the definition of Permitted
Indebtedness, the Company shall classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in Section
4.04(a) or in one of the clauses in the definition of Permitted Indebtedness
and (ii) the amount of Indebtedness issued at a price that is less than the
principal amount thereof shall be equal to the amount of the liability in
respect thereof determined in conformity with GAAP.
The Company's obligations to comply with this covenant will
terminate if and when the Securities are rated Investment Grade by both
Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the
Trustee certifying as to the same.
SECTION 4.05. Disposition of Proceeds of Asset Sales.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, make any Asset Sale, unless
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(i) the Company or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the assets sold or otherwise
disposed of; and
(ii) at least 80% of such consideration consists of (A) cash
or Cash Equivalents, (B) properties and assets to be owned by and
used in the business of the Company or any Restricted Subsidiary or
(C) Equity Interests in one or more Persons which (x) are or
thereby become Restricted Subsidiaries or (y) are engaged in the
Wireless Telecommunications Business to the extent that immediately
after such Asset Sale (and the receipt of the proceeds therefrom),
the percentage of the aggregate Net Pops of the cellular wireless
communications systems in which the Company or any of its Restricted
Subsidiaries has ownership interests represented by cellular
wireless telecommunications systems owned directly by the Company or
a Person or Persons a majority of whose voting power and Equity
Interests is owned by the Company and/or the Restricted Subsidiaries
is no less than 80%. The amount of any (i) Indebtedness (other
than any Subordinated Indebtedness) of the Company or any Restricted
Subsidiary that is actually assumed by the transferee in such Asset
Sale and from which the Company and the Restricted Subsidiaries are
fully released shall be deemed to be cash solely for purposes of
determining the percentage of cash consideration received by the
Company or the Restricted Subsidiaries and (ii) notes or other
similar obligations received by the Company or the Restricted
Subsidiaries from such transferee that are immediately converted,
sold or exchanged (or are converted, sold or exchanged within thirty
days of the related Asset Sale) by the Company or the Restricted
Subsidiaries into cash shall be deemed to be cash, in an amount
equal to the net cash proceeds realized upon such conversion, sale
or exchange for purposes of determining the percentage of cash
consideration received by the Company or the Restricted
Subsidiaries.
The Net Cash Proceeds (or any portion thereof) from any Asset
Sale may be applied by the Company or a Restricted Subsidiary, to the extent
the Company or such Restricted Subsidiary elects, (i) to repay, prepay or
purchase Indebtedness under the Bank Credit Facility or Indebtedness of the
Company that is not subordinate to the Securities or other Indebtedness of any
Restricted Subsidiary (in each case, excluding Indebtedness owed to the
Company or an Affiliate of the Company) or (ii) to reinvest in Additional
Assets (including by means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Cash Proceeds received by the Company or
another Restricted Subsidiary).
To the extent all or part of the Net Cash Proceeds of any Asset
Sale are not applied within 365 days of such Asset Sale as described in the
immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net
Cash Proceeds"), the Company shall, within 20 days after such 365th day, make
an Offer to Purchase all outstanding Securities up to a maximum principal
amount (expressed as a multiple of $1,000) of Securities equal to the
Securities Portion of Unutilized Net Cash Proceeds, at a purchase price in
cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date; provided however, that the
Offer to Purchase may be deferred until there are aggregate Unutilized Net
Cash Proceeds equal to or in excess of $25.0 million, at which time the entire
amount of such Unutilized Net Cash Proceeds, and not just the amount in excess
of $25.0 million, shall be applied as required pursuant to this paragraph.
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In the event that any other Indebtedness of the Company which
ranks pari passu with the Securities (the "Other Debt") requires an offer to
purchase to be made to repurchase such Other Debt upon the consummation of an
Asset Sale, the Company may apply the Unutilized Net Cash Proceeds otherwise
required to be applied to an Offer to Purchase to offer to purchase such Other
Debt and to an Offer to Purchase so long as the amount of such Unutilized Net
Cash Proceeds applied to purchase the Securities is not less than the
Securities Portion of Unutilized Net Cash Proceeds. With respect to any
Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in
respect thereof at the same time as the analogous offer to purchase is made
pursuant to any Other Debt and the Purchase Date in respect thereof shall be
the same as the purchase date in respect thereof pursuant to any Other Debt.
For purposes of this covenant, "Securities Portion of
Unutilized Net Cash Proceeds" means (1) if no Other Debt is being offered to
be repurchased, the amount of the Unutilized Net Cash Proceeds and (2) if
Other Debt is being offered to be repurchased, the amount of the Unutilized
Net Cash Proceeds equal to the product of (x) the Unutilized Net Cash Proceeds
and (y) a fraction the numerator of which is the principal amount of all
Securities tendered pursuant to the Offer to Purchase related to such
Unutilized Net Cash Proceeds (the "Securities Amount") and the denominator of
which is the sum of the Securities Amount and the lesser of the aggregate
principal face amount or accreted value as of the relevant purchase date of
all Other Debt tendered pursuant to a concurrent offer to purchase such Other
Debt made at the time of such Offer to Purchase.
With respect to any Offer to Purchase effected pursuant to this
covenant, among the Securities to the extent the aggregate principal amount of
Securities tendered pursuant to such Offer to Purchase exceeds the Securities
Portion of Unutilized Net Cash proceeds to be applied to the repurchase
thereof, such Securities shall be purchased pro rata based on the aggregate
principal amount of such Securities tendered by each Holder. To the extent
the Securities Portion of Unutilized Net Cash proceeds exceeds the aggregate
principal amount of Securities tendered by the Holders pursuant to such Offer
to Purchase, the Company may retain and utilize any portion of the Securities
Portion of Unutilized Net Cash Proceeds not applied to repurchase the
Securities for any purpose consistent with the other terms of this Indenture,
and such amounts shall thereafter not constitute Unutilized Net Cash Proceeds.
An Offer to Purchase effected pursuant to this covenant shall
follow the procedures set forth in Section 4.14(b).
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act, and any violation of the provisions of
this Indenture relating to such Offer to Purchase occurring as a result of
such compliance shall not be deemed a Default or an Event of Default.
(b) Each Holder shall be entitled to tender all or any portion
of the Securities owned by such Holder pursuant to the Offer to Purchase,
subject to the requirement that any portion of a Security tendered must be
tendered in an integral multiple of $1,000 principal amount and subject to any
proration among tendering Holders as described above.
The Company's obligations to comply with this covenant will
terminate if and when the Securities are rated Investment Grade by both
Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the
Trustee certifying as to the same.
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SECTION 4.06. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or any other distribution on
any Equity Interests of the Company or any Restricted Subsidiary or make any
payment or distribution to the direct or indirect holders (in their capacities
as such) of Equity Interests of the Company or any Restricted Subsidiary
(other than (A) any dividend, distribution or payment made to the Company or
any Restricted Subsidiary, (B) any dividend, distribution or other payment by
any Restricted Subsidiary on or with respect to its Equity Interests that is
paid pro rata to all holders of such Equity Interests or (C) any dividend,
distribution or payment on or with respect to Equity Interests of the Company
or any Restricted Subsidiary payable solely in Qualified Equity Interests of
the Company or such Restricted Subsidiary, as the case may be, or in options,
warrants or other rights to purchase Qualified Equity Interests of the Company
or such Restricted Subsidiary, as the case may be);
(ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company;
(iii) purchase, redeem, defease or retire for value, or make
any principal payment on, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment or mandatory redemption or mandatory
repurchase thereof pursuant to the terms thereof, any Subordinated
Indebtedness (other than any Subordinated Indebtedness held by any Restricted
Subsidiary); or
(iv) make any Restricted Investment
(such payments or any other actions (other than the exceptions thereto)
described in (i), (ii), (iii) and (iv) collectively, "Restricted Payments"),
unless
(a) no Default or Event of Default shall have occurred and be
continuing at the time or after giving effect to such Restricted Payment;
(b) immediately after giving effect to such Restricted
Payment, the Company would be able to Incur $1.00 of Indebtedness under the
Debt to Annualized Operating Cash Flow Ratio of Section 4.04(a); and
(c) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or made on
or after the Issue Date does not exceed an amount equal to the sum of (1) the
difference between (x) the Cumulative Operating Cash Flow determined at the
time of such Restricted Payment and (y) 120% of cumulative Consolidated
Interest Expense of the Company determined for the period commencing on the
Issue Date and ending on the last day of the most recent fiscal quarter
immediately preceding the date of such Restricted Payment for which
consolidated financial information of the Company is available, plus (2) the
aggregate Net Proceeds received by the Company either (x) as capital
contributions to the Company after the Issue Date or (y) from the issue or
sale (other than to a Restricted Subsidiary) of its Qualified Equity Interests
after the Issue Date (excluding the Net Proceeds from any issuance or sale of
Qualified Equity Interests financed, directly or indirectly, using funds
borrowed from the Company or any Restricted Subsidiary until and to the extent
such borrowing is repaid), plus (3) the principal amount (or accreted value
(determined in accordance with GAAP), if less) of any Indebtedness of the
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Company or any Restricted Subsidiary which has been converted into or
exchanged for Qualified Equity Interests of the Company, plus (4) in the case
of the disposition or repayment of any Restricted Investment constituting a
Restricted Payment made after the Issue Date (other than pursuant to clause
(v) of the paragraph after the next paragraph), an amount (to the extent not
included in the computation of Cumulative Operating Cash Flow) equal to the
lesser of: (x) the return of capital with respect to such Restricted
Investment and (y) the amount of such Investment which was treated as a
Restricted Payment, in either case, less the cost of the disposition of such
Investment, plus (5) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any Unrestricted
Subsidiary that has been redesignated as a Restricted Subsidiary after the
Issue Date in accordance with Section 4.16, the Company's proportionate
interest in an amount equal to the excess of (x) the total assets of such
Subsidiary, valued on an aggregate basis at the lesser of book value and Fair
Market Value, over (y) the total liabilities of such Subsidiary, determined in
accordance with GAAP (and provided that such amount shall not in any case
exceed the Designation Amount with respect to such Restricted Subsidiary upon
its Designation), plus (6) (to the extent not included in the computation of
Cumulative Operating Cash Flow) the amount of cash dividends or cash
distributions (other than to pay taxes) received from any Unrestricted
Subsidiary since the Issue Date, plus (7) $25.0 million, minus (8) the greater
of (x) $0 and (y) the Designation Amount (measured as of the date of
Designation) with respect to any Subsidiary of the Company which has been
designated as an Unrestricted Subsidiary after the Issue Date in accordance
with Section 4.16.
For purposes of the preceding clauses (c)(2) and (c)(3), the
value of the aggregate Net Proceeds received by the Company from the issuance
of Qualified Equity Interests upon the conversion or exchange of outstanding
Indebtedness or upon the exercise of options, warrants or rights will be the
Net Proceeds received upon the issuance of such Indebtedness, options, warrants
or rights plus the incremental amount received by the Company upon such
conversion, exchange or exercise.
The foregoing provisions will not prevent (i) the payment of
any dividend or distribution on, or redemption of, Equity Interests within 60
days after the date of declaration of such dividend or distribution or the
giving of formal notice of such redemption, if at the date of such declaration
or giving of formal notice such payment or redemption would comply with the
foregoing provisions; (ii) the purchase, redemption, retirement or other
acquisition of any Equity Interests of the Company in exchange for, or out of
the net cash proceeds of the substantially concurrent issue or sale (other
than to a Restricted Subsidiary) of, Qualified Equity Interests of the
Company; provided, however, that any such net cash proceeds and the value of
any Equity Interests issued in exchange for such retired Equity Interests are
excluded from clause (c)(2) of the preceding paragraph (and were not included
therein at any time); (iii) the purchase, redemption, retirement, defeasance
or other acquisition of Subordinated Indebtedness made in exchange for, or out
of the net cash proceeds of a substantially concurrent issue or sale (other
than to a Restricted Subsidiary) of, (x) Qualified Equity Interests of the
Company; provided, however, that any such net cash proceeds and the value of
any Equity Interests issued in exchange for Subordinated Indebtedness are
excluded from clauses (c)(2) and (c)(3) of the preceding paragraph (and were
not included therein at any time) or (y) other Subordinated Indebtedness
having no stated maturity for the payment of principal thereof prior to the
Final Maturity Date of the Securities; (iv) Restricted Investments not to
exceed $10.0 million in the aggregate since the Issue Date; (v) the purchase,
redemption or other acquisition, cancellation or retirement for value of
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Equity Interests, or options, warrants, equity appreciation rights or other
rights to purchase or acquire Equity Interests, of the Company or any
Restricted Subsidiary, or similar securities, held by officers or employees or
former officers or employees of the Company or any Restricted Subsidiary (or
their estates or beneficiaries under their estates), upon death, disability,
retirement or termination of employment, not to exceed $2.0 million in any
calendar year and $10.0 million in the aggregate since the Issue Date; and
(vi) the redemption, retirement, purchase or other acquisition of shares of
Participating Preferred Stock required or permitted by, or for consideration
with a value not greater than the redemption price of the Participating
Preferred Stock as provided in, Article II of the Certificate of Designation
therefor, without giving effect to any amendments thereto or waivers thereof;
provided, however, that in the case of each of clauses (ii), (iii), (iv), (v)
and (vi) no Default or Event of Default shall have occurred and be continuing
or would arise therefrom.
In determining the amount of Restricted Payments permissible
under this covenant, amounts expended pursuant to clauses (i), (iv), (v) and
(vi) of the preceding paragraph shall be included as Restricted Payments and
amounts expended pursuant to clauses (ii) and (iii) shall be excluded. The
amount of any non-cash Restricted Payment shall be deemed to be equal to the
Fair Market Value thereof at the date of the making of such Restricted Payment.
The Company's obligations to comply with this covenant will
terminate if and when the Securities are rated Investment Grade by both
Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the
Trustee certifying as to the same.
SECTION 4.07. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each
Significant Restricted Subsidiary in accordance with the respective
organizational documents of each such Significant Restricted Subsidiary and
the rights (charter and statutory) and material franchises of the Company and
the Significant Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right or franchise, or the
corporate existence of any Significant Restricted Subsidiary, 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 the
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not,
and will not be, adverse in any material respect to the Holders; provided,
further, however, that a determination of the Board of Directors of the
Company shall not be required in the event of a merger of one or more Wholly
Owned Restricted Subsidiaries of the Company with or into another Wholly Owned
Restricted Subsidiary of the Company or another Person, if the surviving
Person is a Wholly Owned Restricted Subsidiary of the Company organized under
the laws of the United States or a State thereof or of the District of
Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Significant Restricted Subsidiary or upon the income, profits or property of
the Company or any Significant Restricted Subsidiary and (2) all lawful claims
for labor, materials and supplies which, in each case, if unpaid, might by law
Page=46
become a material liability, or Lien upon the property, of the Company or any
Significant Restricted Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made.
SECTION 4.09. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any
of its Subsidiaries is declared due and payable before its maturity because of
the occurrence of any default (or any event which, with notice or lapse of
time, or both, would constitute such a default) under such Indebtedness, the
Company shall promptly give written notice to the Trustee of such declaration,
the status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default,
the Company shall promptly deliver an Officers' Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned by
or leased to it or any Restricted Subsidiary and used or useful in the conduct
of its business or the business of any Significant Restricted Subsidiary to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 4.10 shall prevent the
Company or any Significant Restricted Subsidiary from discontinuing the use,
operation or maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Board of
Directors or of the board of directors of the Significant Restricted
Subsidiary concerned, or of an officer (or other agent employed by the Company
or of any Significant Restricted Subsidiary) of the Company or such Significant
Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Significant
Restricted Subsidiary, and if such discontinuance or disposal is not adverse
in any material respect to the Holders.
(b) The Company shall maintain, and shall cause the
Significant Restricted Subsidiaries to maintain, insurance with responsible
carriers against such risks and in such amounts, and with such deductibles,
retentions, self-insured amounts and co-insurance provisions, as are
customarily carried by similar businesses of similar size, including property
and casualty loss, and workers' compensation insurance.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after
the end of each of the first three fiscal quarters of the Company and within
90 days after the close of each fiscal year a certificate signed by the
principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Company has
been made under the supervision of the signing officers with a view to
determining whether a Default or Event of Default has occurred and whether or
Page=47
not the signers know of any Default or Event of Default by the Company that
occurred during such fiscal quarter or fiscal year. If they do know of such a
Default or Event of Default, the certificate shall describe all such Defaults
or Events of Default, their status and the action the Company is taking or
proposes to take with respect thereto. The first certificate to be delivered
by the Company pursuant to this Section 4.11 shall be for the fiscal quarter
ending June 30, 1997. The certificate delivered pursuant to this Section
4.11 need not comply with Section 10.05.
SECTION 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Company shall
file with the SEC (if permitted by SEC practice and applicable law and
regulations) the annual reports, quarterly reports and other documents which
the Company would have been required to file with the SEC pursuant to such
Section 13(a) or 15(d) or any successor provision thereto if the Company were
so subject, such documents to be filed with the SEC on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company shall also in any event (a) within 15 days of each Required Filing Date
(whether or not permitted or required to be filed with the SEC) (i) transmit
(or cause to be transmitted) by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee, copies of the annual reports, quarterly reports
and other documents which the Company is required to file with the SEC
pursuant to the preceding sentence, or, if such filing is not so permitted,
information and data of a similar nature, and (b) if, notwithstanding the
preceding sentence, filing such documents by the Company with the SEC is not
permitted by SEC practice or applicable law or regulations, promptly upon
written request supply copies of such documents to any Holder. In addition,
for so long as any Series A Securities remain outstanding, the Company will
furnish to the Holders of Series A Securities and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, and, to any
beneficial holder of Series A Securities, if not obtainable from the SEC,
information of the type that would be filed with the SEC pursuant to the
foregoing provisions, upon the request of any such holder. The Company will
also comply with Section 314(a) of the TIA. Delivery of such reports,
information and documents to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein, including the Company's compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law, which would prohibit or forgive the Company
from paying all or any portion of the principal of and/or interest, if any, on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 4.14. Change of Control Triggering Event.
(a) Following the occurrence of a Change of Control Triggering
Event (the date of such occurrence being the "Change of Control Date"), the
Company shall notify the Trustee and Holders of the Securities of such
occurrence in the manner prescribed by this Indenture and shall, within 20
Business Days after the Change of Control Date, make an Offer to Purchase all
Securities then outstanding at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the Purchase Date. The Company's obligations may be satisfied if a
third party makes the Offer to Purchase in the manner, at the times and
otherwise in compliance with the requirements of this Indenture applicable to
an Offer to Purchase made by the Company and purchases all Securities validly
tendered and not withdrawn under such Offer to Purchase. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any portion
of a Security tendered must be tendered in an integral multiple of $1,000
principal amount.
(b) On or prior to the Purchase Date specified in the Offer to
Purchase, the Company shall (i) accept for payment all Securities or portions
thereof validly tendered pursuant to the Offer, (ii) deposit with the Paying
Agent or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.04) money sufficient to pay the Purchase
Price of all Securities or portions thereof so accepted and (iii) deliver or
cause to be delivered to the Trustee for cancellation all Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent (or the
Company, if so acting) shall promptly mail or deliver to Holders of Securities
so accepted, payment in an amount equal to the Purchase Price for such
Securities, and the Trustee shall promptly authenticate and mail or deliver to
each Holder of Securities a new Security or Securities equal in principal
amount to any unpurchased portion of the Security surrendered as requested by
the Holder. Any Security not accepted for payment shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Offer on or as soon as practicable after the
Purchase Date.
(c) If the Company makes an Offer to Purchase, the Company
will comply with all applicable tender offer laws and regulations, including,
to the extent applicable, Section 14(e) and Rule 14e-1 under the Exchange Act,
and any other applicable Federal or state securities laws and regulations and
any applicable requirements of any securities exchange on which the Securities
are listed, and any violation of the provisions of this Indenture relating to
such Offer to Purchase occurring as a result of such compliance shall not be
deemed a Default or an Event of Default.
SECTION 4.15. Limitations on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Equity
Interests or with respect to any other interest or participation in, or
measured by, its profits, or pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (b) make loans or advances to, or guarantee any
Indebtedness or other obligations of, the Company or any other Restricted
Page=49
Subsidiary or (c) transfer any of its properties or assets to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) the Bank Credit Facility; provided,
however, that in no event shall Comcast Cellular (so long as it is a
Subsidiary of the Company) be subject to any encumbrance or restriction with
respect to actions taken by it, (ii) any agreement of the Company or any
Restricted Subsidiary outstanding on the Issue Date, as in effect on the Issue
Date, and any amendments, restatements, renewals, replacements or refinancings
thereof (each, a "refinancing"); provided, however, that (x) no such
refinancing is more restrictive in the aggregate with respect to such
encumbrances or restrictions than those contained in such agreement on the
Issue Date and (y) in no event shall any such refinancing cause Comcast
Cellular (so long as it is a Subsidiary of the Company) to be subject to any
such encumbrance or restriction with respect to actions taken by it; (iii)
applicable law; (iv) any agreement of an Acquired Person acquired by the
Company or any Restricted Subsidiary as in effect at the time of such
acquisition (except to the extent such agreement was created by such Acquired
Person in connection with, as a result of or in contemplation of such
acquisition) and any refinancing thereof; provided, however, that no such
refinancing is more restrictive in the aggregate with respect to such
encumbrances or restrictions than those contained in such agreement at the
time of such acquisition; and provided, further, that such encumbrances and
restrictions are not applicable to the Company or any Restricted Subsidiary,
or the properties or assets of the Company or any Restricted Subsidiary, other
than the Acquired Person; (v) customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices; (vi) Purchase Money Indebtedness for property acquired in the
ordinary course of business that imposes encumbrances and restrictions only on
the property so acquired; (vii) any agreement for the sale or disposition of the
Equity Interests or assets of any Restricted Subsidiary; provided, however, that
such encumbrances and restrictions described in this clause (vii) are only
applicable to such Restricted Subsidiary or assets, as applicable, and any such
sale or disposition is made in compliance with Section 4.05 to the extent
applicable thereto; (viii) refinancing Indebtedness permitted under clause (vii)
of Section 4.04(b); provided, however, that the encumbrances and restrictions
contained in the agreements governing such Indebtedness are no more restrictive
in the aggregate than those contained in the agreements governing the
Indebtedness being refinanced immediately prior to such refinancing; (ix) with
respect to a Securitization Subsidiary, an agreement relating to Indebtedness of
a Securitization Subsidiary which is permitted under Section 4.04 or pursuant to
an agreement relating to a Permitted Receivables Financing by a Securitization
Subsidiary; or (x) this Indenture.
The Company's obligations to comply with this covenant will
terminate if and when the Securities are rated Investment Grade by both
Xxxxx'x and S&P and the Company delivers an Officers' Certificate to the
Trustee certifying as to the same.
SECTION 4.16. Designation of Unrestricted Subsidiaries.
(a) AWACS Investment Holdings, Inc. is initially designated by
the Company as an Unrestricted Subsidiary as of the Issue Date. The Company
may designate after the Issue Date any other Subsidiary of the Company as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
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(i) no Default or Event of Default shall have occurred and
be continuing at the time of or after giving effect to such
Designation;
(ii) at the time of and after giving effect to such
Designation, the Company could Incur $1.00 of additional Indebtedness
under the Debt to Annualized Operating Cash Flow Ratio of Section
4.04(a); and
(iii) (A) the Subsidiary to be so designated has
total assets of $1,000 or less or (B) the Company would be permitted
to make a Restricted Investment at the time of Designation (assuming
the effectiveness of such Designation) pursuant to the first
paragraph of Section 4.06 in an amount (the "Designation Amount")
equal to the Fair Market Value of the Company's proportionate
interest in the net worth of such Subsidiary on such date calculated
in accordance with GAAP.
Notwithstanding the foregoing, Comcast directory Services, Inc.
("CDSI") may be designated an Unrestricted Subsidiary at any time on or after
the Issue Date (and such designation shall not be deemed a Restricted Payment
for purposes of Section 4.06 above, provided Investments by the Company the
Restricted Subsidiaries in CDSI since the Issue Date and outstanding on the
date of designation shall not exceed $200,000 in the aggregate (without giving
effect to any writedown or writeoff of such Investment).
Neither the Company nor any Restricted Subsidiary shall at any
time (x) provide credit support for, subject any of its property or assets
(other than the Equity Interests of any Unrestricted Subsidiary) to the
satisfaction of, or guarantee, any Indebtedness of any Unrestricted Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness) or (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary, except, in the case of clause (x) or (y), to the
extent otherwise permitted under the terms of this Indenture, including,
without limitation pursuant to Section 4.06, Section 4.05 and Section 4.04,
and except for any non-recourse guarantee given solely to support the pledge
by the Company or any Restricted Subsidiary of the Equity Interests of any
Unrestricted Subsidiary. All Subsidiaries of Unrestricted Subsidiaries shall
be Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as
an Unrestricted Subsidiary (a "Revocation") if:
(i) no Default or Event of Default shall have occurred and
be continuing at the time of and after giving effect to such
Revocation;
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would,
if Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture; and
(iii) any transaction (or series of related transactions)
between such Subsidiary and any of its Affiliates that occurred
while such Subsidiary was an Unrestricted Subsidiary would be
permitted by Section 4.03 as if such transaction (or series of
related transactions) had occurred at the time of such Revocation.
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All Designations and Revocations must be evidenced by
resolutions of the Board of Directors of the Company, delivered to the Trustee
certifying compliance with the foregoing provisions.
SECTION 4.17. Limitation on Liens.
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, Incur any Liens of any kind
against or upon any of their respective properties or assets now owned or
hereafter acquired, or any proceeds therefrom or any income or profits
therefrom, to secure any Indebtedness unless contemporaneously therewith
effective provision is made to secure the Securities equally and ratably with
such Indebtedness with a Lien on the same properties and assets securing
Indebtedness for so long as such Indebtedness is secured by such Lien, except
for Permitted Liens.
SECTION 4.18. Redemption of Zero Coupon Notes.
On the Issue Date the Company shall cause Comcast Cellular to
issue a Valuation Notice (as defined in the Zero Coupon Indenture) pursuant to
the Amended and Restated Indenture dated as of June 5, 1992 (as amended and in
effect from time to time, the "Zero Coupon Indenture") among Comcast Cellular,
Comcast Corporation and The Bank of New York, as trustee, and as soon as
practicable following the giving of such Valuation Notice to redeem in
accordance with the Valuation Notice and the Zero Coupon Indenture, all of the
Series A Senior Participating Zero Coupon Notes due 2000 and the Series B
Senior Participating Zero Coupon Notes due 2000 issued and outstanding
thereunder (the "Zero Coupon Notes").
SECTION 4.19. Transactions not Subject to Covenants.
Notwithstanding anything to the contrary in this Indenture, the
following shall not be prohibited (regardless of the form or substance of the
transaction or series of transactions effecting the same):
(i) the redemption, repurchase or cancellation of all (but
not less than all) of the Participating Preferred Stock in exchange
for, or out of the proceeds of the substantially concurrent sale of,
Guest Informant;
(ii) the issuance of up to 4.11% of the Qualified Equity
Interests of Amcell of Atlantic City, Inc., a New Jersey corporation,
to the holders of the 4.11% minority interest in the Atlantic City
MSA License in exchange for all (but not less than all) of such
interest; and
(iii) the transfer, by sale, dividend or other distribution
or otherwise, directly or indirectly, in one transaction or series of
transactions, of all of the Equity Interests or all or substantially
all of the assets of AWACS Investment Holdings, Inc. and its
Subsidiaries or Comcast Directory Services, Inc. and its
Subsidiaries.
No transaction described in this covenant, and no change in the
results of operations or financial condition of the Company or any Restricted
Subsidiary resulting solely therefrom, shall be taken into account in any
calculation under Section 4.06 or in the calculation under Section 4.04(a) of
the Debt to Annualized Operating Cash Flow Ratio.
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ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.
The Company shall not consolidate with or merge with or into
(whether or not the Company is the Surviving Person) any other entity, and the
Company shall not, and shall not cause or permit any Restricted Subsidiary to,
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Company's and the Restricted Subsidiaries' properties
and assets (determined on a consolidated basis for the Company and the
Restricted Subsidiaries) to any entity in a single transaction or series of
related transactions, unless: (i) either (x) the Company shall be the
Surviving Person or (y) the Surviving Person (if other than the Company) shall
be a corporation organized and validly existing under the laws of the United
States of America or any State thereof or the District of Columbia, and shall,
in any such case, expressly assume by a supplemental indenture, the due and
punctual payment of the principal of, premium, if any, and interest on the
Securities and the performance and observance of every covenant of this
Indenture and the Registration Rights Agreement to be performed or observed on
the part of the Company; (ii) immediately thereafter, no Default or Event of
Default shall have occurred and be continuing; and (iii) immediately after
giving effect to any such transaction involving the Incurrence by the Company
or any Restricted Subsidiary, directly or indirectly, of additional
Indebtedness (and treating any Indebtedness not previously an obligation of
the Company or any Restricted Subsidiary in connection with or as a result of
such transaction as having been Incurred at the time of such transaction), the
Surviving Person could Incur, on a pro forma basis after giving effect to such
transaction as if it had occurred at the beginning of the quarter immediately
preceding the latest fiscal quarter for which consolidated financial
statements of the Company are available, at least $1.00 of additional
Indebtedness under the Debt to Annualized Operating Cash Flow Ratio of Section
4.04(a); provided, however, that neither clause (ii) nor clause (iii) shall
prohibit a merger of the Company with or into Comcast Cellular or a merger of
a Restricted Subsidiary with or into the Company.
SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described
in and complying with the conditions listed in Section 5.01 in which the
Company is not the Surviving Person and the Surviving Person is to assume all
the Obligations of the Company under the Securities, this Indenture and the
Registration Rights Agreement pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company and the Company shall be discharged from
its Obligations under the Securities, this Indenture and the Registration
Rights Agreement.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" for
purposes of this Indenture:
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(1) failure to pay any interest on any Security when the
same becomes due and payable and the Default continues for a period
of 30 days;
(2) failure to pay the principal of any Security when the
same becomes due and payable at maturity, xxxx xxxxxxxxxx, xxxx
xxxxxxxxxx pursuant to an Offer to Purchase or otherwise, or the
Company fails to pay on the Purchase Date the Purchase Price for any
Security tendered pursuant to an Offer to Purchase;
(3) failure to perform any other covenant, warranty or
agreement under this Indenture or in the Securities, and the Default
continues for the period and after the notice specified in the last
paragraph of this Section 6.01;
(4) a default or defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any
Significant Restricted Subsidiary having an outstanding principal
amount of $25.0 million or more individually or in the aggregate that
has resulted in the acceleration of the payment of such Indebtedness
or failure by the Company or any Significant Restricted Subsidiary to
pay principal when due at the stated final maturity (but not any
interim maturity) of any such Indebtedness; provided, however, that
it shall not be an Event of Default if such Indebtedness shall have
been repaid in full or such acceleration shall have been rescinded
within 60 days of such acceleration or failure to pay;
(5) there shall have been any final judgment or judgments
(not subject to appeal) against the Company or any Significant
Restricted Subsidiary in an amount of $25.0 million or more (net of
any amounts covered by reputable and creditworthy insurance
companies) which remain undischarged or unstayed for a period of 60
days after the date on which the right to appeal has expired;
(6) the Company or any Significant Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) admits in writing its inability to pay its debts
generally as they become due,
(B) commences a voluntary case or proceeding,
(C) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(D) consents or acquiesces in the institution of a
bankruptcy or insolvency proceeding against it,
(E) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(F) makes a general assignment for the benefit of its
creditors, or any of them takes any action to authorize or
effect any of the foregoing;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
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(A) is for relief against the Company or any
Significant Restricted Subsidiary in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company or any
Significant Restricted Subsidiary or for all or substantially
all of its property, or
(C) orders the liquidation of the Company or any
Significant Restricted Subsidiary, and in each case the order
or decree remains unstayed and in effect for 60 days; provided,
however, that if the entry of such order or decree is appealed
and dismissed on appeal, then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to
have been cured; or
(8) at any time that Comcast Corporation is an Affiliate
of the Company, Comcast Corporation or any Subsidiary of Comcast
Corporation (other than the Company or any of its Subsidiaries) is
engaged in the cellular telecommunications business or broadband
personal communication services business in any market in which the
Company or any of its Subsidiaries is engaged in the cellular
telecommunications business or broadband personal communication
services business (other than any market where Comcast Corporation or
any such Subsidiary was engaged in such business prior to the Company
and its Subsidiaries).
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities notify the Company and the Trustee, of
the Default in writing and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default." Such
notice shall be given by the Trustee if so requested by the Holders of at
least 25% in principal amount of the Securities then outstanding. When a
Default is cured, it ceases.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other
than an Event of Default specified in clause (6) or (7) of Section 6.01 with
respect to the Company) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the outstanding Securities by
notice in writing to the Company (and to the Trustee if given by the Holders)
may declare the unpaid principal of and accrued interest to the date of
acceleration on all outstanding Securities to be due and payable immediately
and, upon any such declaration, such principal amount and accrued interest,
notwithstanding anything contained in this Indenture or the Securities to the
contrary, shall become immediately due and payable.
If an Event of Default specified in clause (6) or (7) of
Section 6.01 with respect to the Company occurs, all unpaid principal of and
accrued interest on all outstanding Securities shall ipso facto become
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immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or
decree of the money due in respect of the Securities has been obtained, the
Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default (other
than the nonpayment of principal of and interest on the Securities which has
become due solely by virtue of such acceleration) have been cured or waived
and if the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy maturing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 9.02, prior to the
declaration of acceleration of the Securities, the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of
or interest on any Security as specified in clauses (1) and (2) of Section
6.01 or a Default in respect of any term or provision of this Indenture that
may not be amended or modified without the consent of each Holder affected as
provided in Section 9.02. The Company shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents. In case of any such waiver,
the Company, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Securities, respectively. This
paragraph of this Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded
from this Indenture and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
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conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
the Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification satisfactory to it in its
sole discretion against any loss or expense caused by taking such action or
following such direction. This Section 6.05 shall be in lieu of Section
316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(iii) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities (excluding Affiliates
of the Company) do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of or interest on a
Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities for the whole amount of
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principal and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate
per annum borne by the Securities and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by
each Securityholder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 shall not apply to a suit by the
Trustee, a suit by a Holder or group of Holders of more than 10% in aggregate
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principal amount of the outstanding Securities, or to any suit instituted by
any Holder for the enforcement or the payment of the principal or interest on
any Securities on or after the respective due dates expressed in the Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for
the performance of such duties as are specifically set forth herein;
and
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions conforming to the requirements of this Indenture;
however, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) The Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive from such Holders an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance
with such request or direction.
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(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to the provisions of Section 10.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or negligence of any
agent or attorney (other than an agent who is an employee of the Trustee)
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(h) 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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
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.
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(i) The Trustee shall not be deemed to have notice of any
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless the Trustee shall have received written notice thereof at
the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee,
subject to Section 7.10 hereof. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale
of Securities or any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and the Trustee knows of such Defaults or Events of Default, the Trustee shall
mail to each Securityholder notice of the Default or Event of Default within
30 days after the occurrence thereof. Except in the case of a Default or an
Event of Default in payment of principal of or interest on any Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interest of Securityholders. This Section 7.05 shall be in lieu of the proviso
to Section 315(b) of the TIA and such proviso to Section 315(b) of the TIA
is hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each
May 15 beginning with May 15, 1998, the Trustee shall mail to each
Securityholder a report dated as of such May 15 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any,
on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
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and advances (including fees, disbursements and expenses of its agents and
counsel) incurred or made by it in addition to the compensation for its
services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 8.01 hereof.
The Company shall indemnify the Trustee for, and hold it
harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent that such loss,
damage, claim, liability or expense is due to its own negligence or bad faith.
The Trustee shall notify the Company promptly of any claim asserted against
the Trustee for which it may seek indemnity. However, the failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense (and may employ its own counsel) at the
Company's expense; provided, however, that the Company's reimbursement
obligation with respect to counsel employed by the Trustee will be limited to
the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee as a result of the violation of this Indenture by the
Trustee.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Securities against all money
or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of or interest on
particular Securities or the Purchase Price or redemption price of any
Securities to be purchased or pursuant to an Offer to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to
constitute expenses of administration under any Bankruptcy Law. The Company's
obligations under this Section 7.07 and any claim arising hereunder shall
survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Eight and any rejection or
termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company
in writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
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(2) the Trustee is adjudged a bankrupt or an insolvent under
any Bankruptcy Law;
(3) a custodian or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Securities may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA Section Section 310(a)(1) and 310(a)(2).
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition. If the
Trustee has or shall acquire any "conflicting interest" within the meaning of
TIA Section 310(b), the Trustee and the Company shall comply with the
provisions of TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
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requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.10, the Trustee shall resign immediately in the
manner and with the effect hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate its substantive obligations in
respect of the Securities by delivering all outstanding Securities to the
Trustee for cancellation and paying all sums payable by it on account of
principal of and interest on all Securities or otherwise. In addition to the
foregoing, the Company may terminate its obligation under Sections 4.03, 4.04,
4.05, 4.06, 4.08, 4.10, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 (and no Default
or Event of Default under Section 6.01(3) shall thereafter apply), by (i)
depositing with the Trustee, under the terms of an irrevocable trust
agreement, money or direct non-callable obligations of the United States of
America for the payment of which the full faith and credit of the United
States is pledged ("United States Government Obligations") sufficient (without
reinvestment) to pay all remaining indebtedness on the Securities at maturity
or an earlier redemption, (ii) delivering to the Trustee either an Opinion of
Counsel or a ruling directed to the Trustee from the Internal Revenue Service
to the effect that the Holders of the Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
termination of obligations, (iii) delivering to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
paragraph will not result in any of the Company, the Trustee or the trust
created by the Company's deposit of funds pursuant to this provision becoming
or being deemed to be an "investment company" under the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and (iv) delivering to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
compliance with all conditions precedent provided for herein. In addition, the
Company may, provided that no Default or Event of Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default or Event of
Default specified in Section 6.01(6) or (7), occurs at any time on or prior to
the 91st calendar day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until after such 91st day)),
terminate all of its substantive obligations in respect of the Securities
(including its obligations to pay the principal of (and premium, if any, on)
and interest on the Securities) by (i) depositing with the Trustee, under the
terms of an irrevocable trust agreement, money or United States Government
Obligations sufficient (without reinvestment) to pay all remaining
indebtedness on the Securities at maturity or on earlier redemption, (ii)
delivering to the Trustee either a ruling directed to the Trustee from the
Internal Revenue Service to the effect that the Holders of the Securities will
not recognize income, gain or loss for federal income tax purposes as a result
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of such deposit and termination of obligations or an Opinion of Counsel
addressed to the Trustee based upon such a ruling or based on a change in the
applicable Federal tax law since the date of this Indenture to such effect,
(iii) delivering to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this paragraph will not result in any
of the Company, the Trustee or the trust created by the Company's deposit of
funds pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act and (iv) delivering to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating compliance
with all conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13
and 4.01 (but not with respect to termination of substantive obligations
pursuant to the third sentence of the foregoing paragraph), 4.02, 7.07, 7.08,
8.03 and 8.04 shall survive until the Securities are no longer outstanding.
Thereafter the Company's obligations in Sections 7.07, 8.03 and 8.04 shall
survive.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations specified
above.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States
Government Obligations deposited pursuant to this Section 8.01 or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of
outstanding Securities.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or United States
Government Obligations deposited with it pursuant to Section 8.01, and shall
apply the deposited money and the money from United States Government
Obligations in accordance with this Indenture solely to the payment of
principal of and interest on the Securities.
SECTION 8.03. Repayment to Company.
Subject to Sections 7.07 and 8.01, the Trustee shall promptly
pay to the Company upon written request any excess money held by it at any
time. The Trustee shall pay to the Company upon written request any money held
by it for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Trustee before being required to make any
payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and
that, after a date specified therein which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining shall be repaid to the Company. After payment to the Company,
Securityholders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates
another person and all liability of the Trustee or Paying Agent with respect
to such money shall thereupon cease.
SECTION 8.04. Reinstatement.
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If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.01 until such time as the Trustee is permitted to apply all such money or
United States Government Obligations in accordance with Section 8.01;
provided, however, that if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or United States Government
Obligations held by the Trustee.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a resolution of its Board of
Directors, and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
provided, however, that such amendment or supplement does not
materially adversely affect the rights of any Holder;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities, this Indenture and
the Registration Rights Agreement in connection with any transaction
complying with Article Five of this Indenture;
(iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(iv) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not materially
adversely affect the rights of any Holder under this Indenture;
(vii) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company; or
(viii) to secure the Securities pursuant to the requirements
of Section 4.18 or otherwise;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.01.
SECTION 9.02. With Consent of Holders.
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Subject to Section 6.07, the Company, when authorized by a
resolution of its Board of Directors, and the Trustee may amend or supplement
this Indenture or the Securities with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities. Subject to
Section 6.07, the Holders of a majority in principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) change the Stated Maturity of the principal of or any
installment of interest on any Security or alter the optional
redemption or repurchase provisions of any Security or this Indenture
in a manner adverse to the Holders of the Securities;
(2) reduce the principal amount (or the premium) of any
Security;
(3) reduce the rate of or extend the time for payment of
interest on any Security;
(4) change the place or currency of payment of the principal
of or interest on any Security;
(5) modify any provisions of Section 6.04 (other than to add
sections of this Indenture or the Securities subject thereto) or 6.07
or this Section 9.02 (other than to add sections of this Indenture or
the Securities which may not be amended, supplemented or waived
without the consent of each Securityholder affected);
(6) reduce the percentage of the principal amount of
outstanding Securities necessary for amendment to or waiver of
compliance with any provision of this Indenture or the Securities or
for waiver of any Default;
(7) waive a default in the payment of the principal of or
interest on or redemption payment with respect to any Security
(except a rescission of acceleration of the Securities by the Holders
as provided in Section 6.02 and a waiver of the payment default that
resulted from such acceleration);
(8) modify the ranking or priority of the Securities; or
(9) modify the provisions of any covenant (or the related
definitions in this Indenture) requiring the Company to make any
Offer to Purchase in a manner materially adverse to the Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with Trust Indenture Act.
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Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of that Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security or
portion of such Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Securities entitled to
consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the last sentence of the immediately preceding
paragraph, those persons who were Holders of Securities at such record date
(or their duly designated proxies), and only those persons, shall be entitled
to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders of such
Securities after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects
the changed terms. Failure to make the appropriate notation or issue a new
Security shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine
is authorized or permitted by this Indenture and that such amendment,
supplement or waiver constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
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supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable,
be governed by such provisions. If any provision of this Indenture modifies
any TIA provision that may be so modified, such TIA provision shall be deemed
to apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall
be excluded from this Indenture.
The provisions of TIA Section Section 310 through 317 that
impose duties on any Person (including the provisions automatically deemed
included unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 10.02. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile and confirmed by overnight
courier, or mailed by first-class mail addressed as follows:
if to the Company:
Comcast Cellular Holdings, Inc.
c/o Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
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Facsimile: (000)000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage
prepaid, to a Holder including any notice delivered in connection with TIA
Section 310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section
315(b), shall be mailed to him at his address as set forth on the Security
Register and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication
shall also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given
only when received, if a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and any other
person shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate (other than the certificates provided pursuant
to Section 4.11) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 10.07. Governing Law.
The laws of the State of New York shall govern this Indenture
and the Securities without regard to principles of conflicts of law.
SECTION 10.08. No Recourse Against Others.
A director, officer, employee, incorporator or stockholder of
the Company or any of its Affiliates, as such, shall not have any liability
for any obligations of the Company or any of its Affiliates under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
SECTION 10.09. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 10.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 10.11. Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 10.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Legal Holidays.
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If a payment date is a not a Business Day at a place of
payment, payment may be made at that place on the next succeeding Business
Day, and no interest shall accrue for the intervening period.
[Signature Pages Follow]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
COMCAST CELLULAR HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxx Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Vice President
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