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INDENTURE
Dated as of December 9, 1998
Among
FRONTIERVISION HOLDINGS, L.P.
and
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION, as Issuers
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
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$91,298,000 Principal Amount at Maturity
11 7/8% Senior Discount Notes due 2007, Series B
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
ss. 310 (a)(1)..................................... 7.10
(a)(2)..................................... 7.10
(a)(3)..................................... N.A.
(a)(4)..................................... N.A.
(a)(5)..................................... N.A.
(b)........................................ 7.08; 7.10; 13.02
(c)........................................ N.A.
ss. 311 (a)........................................ 7.11
(b)........................................ 7.11
(c)........................................ N.A.
ss. 312 (a)........................................ 2.05
(b)........................................ 13.03
(c)........................................ 13.03
ss. 313 (a)........................................ 7.06
(b)(1)..................................... N.A.
(b)(2)..................................... 7.06
(c)........................................ 7.06; 13.02
(d)........................................ 7.06
ss. 314 (a)........................................ 4.11; 4.12; 13.02
(b)........................................ N.A.
(c)(1)..................................... 13.04
(c)(2)..................................... 13.04
(c)(3)..................................... N.A.
(d)........................................ N.A.
(e)........................................ 13.05
(f)........................................ N.A.
ss. 315 (a)........................................ 7.01(b)
(b)........................................ 7.05; 13.02
(c)........................................ 7.01(a)
(d)........................................ 7.01(c)
(e)........................................ 6.11
ss. 316 (a)(last sentence)......................... 2.09
(a)(1)(A).................................. 6.05
(a)(1)(B).................................. 6.04
(a)(2)..................................... N.A.
(b)........................................ 6.07
(c)........................................ 10.04
ss. 317 (a)(1)..................................... 6.08
(a)(2)..................................... 6.09
(b)........................................ 2.04
ss. 318 (a)........................................ 13.01
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N.A. means Not Applicable.
Note:This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions......................................................................1
SECTION 1.02 Other Definitions...............................................................27
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...............................28
SECTION 1.04 Rules of Construction...........................................................28
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.................................................................29
SECTION 2.02 Execution and Authentication....................................................31
SECTION 2.03 Registrar; Paying Agent; Depository.............................................32
SECTION 2.04 Paying Agent To Hold Money in Trust.............................................33
SECTION 2.05 Securityholder Lists............................................................34
SECTION 2.06 Transfer and Exchange...........................................................34
SECTION 2.07 Replacement Securities..........................................................46
SECTION 2.08 Outstanding Securities..........................................................46
SECTION 2.09 Treasury Securities.............................................................47
SECTION 2.10 Temporary Securities............................................................47
SECTION 2.11 Cancellation....................................................................47
SECTION 2.12 Defaulted Interest..............................................................48
SECTION 2.13 Payments of Interest............................................................48
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee..............................................................49
SECTION 3.02 Selection of Securities To Be Redeemed..........................................50
SECTION 3.03 Notice of Redemption............................................................50
SECTION 3.04 Effect of Notice of Redemption..................................................51
SECTION 3.05 Deposit of Redemption Price.....................................................51
SECTION 3.06 Securities Redeemed in Part.....................................................52
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities...........................................................52
i
SECTION 4.02 Maintenance of Office or Agency.................................................53
SECTION 4.03 Limitation on Transactions with Affiliates and Related
Persons.....................................................................53
SECTION 4.04 Limitation on Indebtedness......................................................55
SECTION 4.05 Disposition of Proceeds of Asset Sales..........................................58
SECTION 4.06 Limitation on Restricted Payments...............................................61
SECTION 4.07 Corporate Existence.............................................................65
SECTION 4.08 Payment of Taxes and Other Claims...............................................66
SECTION 4.09 Notice of Defaults..............................................................66
SECTION 4.10 Maintenance of Properties.......................................................67
SECTION 4.11 Compliance Certificate..........................................................67
SECTION 4.12 Provision of Financial Information..............................................68
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.........................................69
SECTION 4.14 Change of Control...............................................................69
SECTION 4.15 [Intentionally Omitted].........................................................70
SECTION 4.16 Limitations on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries...........................................70
SECTION 4.17 Designation of Unrestricted Subsidiaries........................................72
SECTION 4.18 Limitation on Liens.............................................................74
SECTION 4.19 Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries................................................................74
SECTION 4.20 Limitation on Conduct of Business of Capital....................................76
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01 Merger, Sale of Assets, etc.....................................................76
SECTION 5.02 Successor Corporation Substituted...............................................78
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default...............................................................78
SECTION 6.02 Acceleration....................................................................81
SECTION 6.03 Other Remedies..................................................................82
SECTION 6.04 Waiver of Past Default..........................................................83
SECTION 6.05 Control by Majority.............................................................83
SECTION 6.06 Limitation on Suits.............................................................84
SECTION 6.07 Rights of Holders To Receive Payment............................................85
SECTION 6.08 Collection Suit by Trustee......................................................85
SECTION 6.09 Trustee May File Proofs of Claim................................................85
ii
SECTION 6.10 Priorities......................................................................86
SECTION 6.11 Undertaking for Costs...........................................................87
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee...............................................................87
SECTION 7.02 Rights of Trustee...............................................................89
SECTION 7.03 Individual Rights of Trustee....................................................90
SECTION 7.04 Trustee's Disclaimer............................................................90
SECTION 7.05 Notice of Defaults..............................................................91
SECTION 7.06 Reports by Trustee to Holders...................................................91
SECTION 7.07 Compensation and Indemnity......................................................92
SECTION 7.08 Replacement of Trustee..........................................................93
SECTION 7.09 Successor Trustee by Merger, etc................................................94
SECTION 7.10 Eligibility; Disqualification...................................................95
SECTION 7.11 Preferential Collection of Claims Against Company...............................95
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01 Termination of Issuers' Obligations.............................................96
SECTION 9.02 Application of Trust Money......................................................98
SECTION 9.03 Repayment to Issuers............................................................98
SECTION 9.04 Reinstatement...................................................................99
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders......................................................99
SECTION 10.02 With Consent of Holders........................................................101
SECTION 10.03 Compliance with Trust Indenture Act............................................103
SECTION 10.04 Effect of Consents.............................................................103
SECTION 10.05 Notation on or Exchange of Securities..........................................104
SECTION 10.06 Trustee To Sign Amendments, etc................................................104
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01 Unconditional Guarantee........................................................105
iii
SECTION 11.02 Severability...................................................................106
SECTION 11.03 Release of a Guarantor.........................................................106
SECTION 11.04 Limitation of Subsidiary Guarantor's Liability.................................107
SECTION 11.05 Contribution...................................................................108
SECTION 11.06 Execution of Subsidiary Guarantee..............................................108
SECTION 11.07 Additional Subsidiary Guarantors...............................................109
SECTION 11.08 Subordination of Subrogation and Other Rights..................................109
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls...................................................110
SECTION 13.02 Notices........................................................................110
SECTION 13.03 Communications by Holders with Other Holders...................................112
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.............................112
SECTION 13.05 Statements Required in Certificate or Opinion..................................113
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar......................................113
SECTION 13.07 Governing Law..................................................................114
SECTION 13.08 No Recourse Against Others.....................................................114
SECTION 13.09 Successors.....................................................................114
SECTION 13.10 Counterpart Originals..........................................................114
SECTION 13.11 Severability...................................................................115
SECTION 13.12 No Adverse Interpretation of Other Agreements..................................115
SECTION 13.13 Legal Holidays.................................................................115
SIGNATURES.................................................................................................S-1
EXHIBIT A - Form of Security...............................................................................A-1
EXHIBIT B - Form of Certificate of Transfer................................................................B-1
EXHIBIT C - Form of Certificate of Exchange................................................................C-1
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Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
iv
INDENTURE dated as of December 9, 1998, among FRONTIERVISION HOLDINGS,
L.P., a Delaware limited partnership (the "Company"), FRONTIERVISION HOLDINGS
CAPITAL II CORPORATION, a Delaware corporation ("Capital" and together with the
Company, the "Issuers"), and U.S. BANK NATIONAL ASSOCIATION, 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 11 7/8% Senior Discount
Notes due 2007, Series B, of the Issuers:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accreted Value" as of any date (the "Specified Date") means, with respect
to each $1,000 original principal amount at maturity of Securities:
(i) if the Specified Date is one of the following dates (each a
"Semi-Annual Accrual Date"), the amount set forth opposite such date below:
Semi-Annual Accreted
Accrual Date Value
Issue Date............................. $726.76
March 15, 1999......................... 750.42
September 15, 1999..................... 794.97
March 15, 2000......................... 842.17
September 15, 2000..................... 892.18
March 15, 2001......................... 945.15
September 15, 2001..................... $1,000.00
(ii) if the Specified Date occurs between two Semi-Annual Accrual Dates,
the sum of (a) the Accreted Value for the Semi-Annual Accrual Date immediately
preceding the Specified Date and (b) an amount equal to the product of (x) the
Accreted Value for the immediately following Semi-Annual Accrual Date less the
Accreted Value for the immediately preceding Semi-Annual Accrual Date and (y) a
fraction, the numerator of which is the number of days actu-
2
ally elapsed from the immediately preceding Semi-Annual Accrual Date to the
Specified Date and the denominator of which is 180; and
(iii) if the Specified Date is after September 15, 2001, $1,000;
provided, however, that if the Company makes the Cash Interest Election, the
Accreted Value shall be, and remain through the Stated Maturity of the
Securities, the Accreted Value as of the Semi-Annual Accrual Date on which the
Cash Interest Election is made.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a 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.
"Additional Interest" shall mean the meaning set forth in the Registration
Rights Agreement.
"Advisory Committee" means the Advisory Committee of the General Partner
established pursuant to the provisions of Article VI of the First Amended and
Restated Agreement of Limited Partnership of the General Partner, as amended to
the date of issuance of the Securities.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"Applicable Procedures" means, with respect to any transfer or exchange of
interests in a Global Security, the rules and procedures of DTC, Euroclear and
Cedel that apply to such transfer or exchange.
3
"Asset 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, 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.
"Asset Sale" means any direct or indirect sale, conveyance, transfer, lease
(that has the effect of a disposition) or other disposition (including, without
limitation, any merger, consolidation or sale-leaseback transaction) to any
Person other than the Company or a Wholly Owned 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. For the purposes of this
definition, the term "Asset Sale" shall not include (i) any transaction
consummated in compliance with Section 5.01 and the creation of any Lien not
prohibited by Section 4.18, (ii) 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,
and (iii) any transaction consummated in compliance with Section 4.06. 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 $1.0 million individually or $2.0 million in any fiscal year
shall be deemed not to be an Asset Sale.
"Board of Directors" means (i) in the case of a Person that is a
partnership, the board of directors of such Person's corporate general partner
(or if such general partner is itself a partnership, the board of directors of
such general
4
partner's corporate general partner), (ii) in the case of a Person that is a
corporation, the board of directors of such Person and (iii) in the case of any
other Person, the board of directors, management committee or similar governing
body or any authorized committee thereof responsible for the management of the
business and affairs of such Person. By way of illustration, as of the date of
this Indenture, any reference herein to the Board of Directors of any of the
Company, the General Partner or FVP GP means the board of directors of FV Inc.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law, resolution or executive order to close.
"Capitalized Lease Obligation" means, with respect to any Person for any
period, an obligation of such Person to pay rent or other amounts under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount shown on the balance sheet of such Person as determined in accordance
with GAAP.
"Cash Equivalents" means (i) any security, maturing not more than six
months after the date of acquisition, issued by the United States of America, or
an instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (ii) any
certificate of deposit, time deposit, money market account or bankers'
acceptance maturing not more than six months after the date of acquisition
issued by any commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500.0 million whose debt has a rating, at the time as of which
any investment therein is made, of "P-1" (or
5
higher) according to Xxxxx'x Investors Service, Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Rating Services, a
division of the XxXxxx-Xxxx Companies, Inc., or any successor rating agency and
(iii) commercial paper maturing not more than three months after the date of
acquisition issued by any corporation (other than an Affiliate of the Company)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Rating Services, a
division of the XxXxxx-Xxxx Companies, Inc., or any successor rating agency.
"Cash Interest Election" means the election by the Issuers on any
Semi-Annual Accrual Date (with written notice of such election to be given by
the Issuers to the Trustee and the Holders on such date) to begin accruing cash
interest on the Securities (which election shall be irrevocable) on such
Semi-Annual Accrual Date.
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), other than the Permitted Holders, is or becomes the
"beneficial owner" (as defined in 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), directly or
indirectly, of 50% or more of the total voting power of the outstanding Voting
Equity Interests of the Company, the General Partner, FVP GP or FV Inc., as the
case may be; (b) the Company, the General Partner, FVP GP or FV Inc., as the
case may be, consolidates with, or merges with or into, another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, the General Partner, FVP GP or FV Inc., as
the case may be, in any such event pursuant to a transaction in which the
outstanding Voting Equity Interests of the Company, the General Partner, FVP GP
or FV Inc., as the case may
6
be, are converted into or exchanged for cash, securities or other property,
other than any such transaction where the outstanding Voting Equity Interests of
the Company, the General Partner, FVP GP or FV Inc., as the case may be, are
converted into or exchanged for Voting Equity Interests (other than Disqualified
Equity Interests) of the surviving or transferee Person and, immediately after
such transaction, the Permitted Holders or the holders of the Voting Equity
Interests of the Company, the General Partner, FVP GP or FV Inc., as the case
may be, immediately prior thereto own, directly or indirectly, more than 50% of
the total voting power of the outstanding 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, the General Partner, FVP GP or FV Inc., as the case
may be (together with any new directors whose election to such Board of
Directors was approved by the Permitted Holders or 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, the General Partner, FVP GP or FV Inc., as the case may be, then in
office in any such case in connection with any actual or threatened solicitation
to which Rule 14a-11 of Regulation 14A promulgated under the Exchange Act
applies or other actual or threatened solicitation of proxies or consents; (d)
any Person or Persons, other than Permitted Holders, are or become entitled to
appoint or designate more than 25% of the members of the Advisory Committee; or
(e) the admission of any Person as a general partner of the Company, the General
Partner or FVP GP, as the case may be, after which the General Partner, FVP GP
or FV Inc., as the case may be, does not have the sole power to take all of the
actions it is entitled or required to take under the limited partnership
agreement of the Company, the General Partner or FVP GP, as the case may be, as
in effect on the Issue Date; provided, however, that a Change of Control will be
deemed not to have occurred in any of the foregoing circumstances (i) with
respect to FV Inc. (either in its own capacity or in its capacity as a direct or
indirect corporate general partner of any other Person), (ii) with respect to or
as a result of the conversion of the general partnership interest of FVP GP in
the General Partner into a limited partnership interest, or (iii) with respect
to the events in clause (e) if the change, event or condition giving rise
thereto has been approved by the Permitted Holders holding a majority in
interest of the total outstanding Equity Interests of the General Partner held
by the Permitted Holders.
"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.
"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 Sub-
7
sidiaries 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 and (e) all
capitalized interest and all accrued interest, (ii) the interest component of
Capitalized 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 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, (i) all
extraordinary gains or losses and all gains and losses from the sale or other
disposition 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,
(ii) 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, (iii) the portion
of such net income (or loss) allocable to minority interests in unconsolidated
Persons 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 the immediately following sentence of this
definition), and (iv) 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. In calculating
Consolidated Net Income as a component of Consolidated Operating Cash Flow (x)
for purposes of calculating the Debt to Operating Cash Flow Ratio in connection
with determining whether an Incurrence of Indebtedness by the Company (but not
the Restricted Subsidiaries) is permitted under the Debt to Operating Cash Flow
Ratio of the first paragraph of Section 4.04 and (y) for purposes of calculating
(I) Cumulative Available Cash Flow pursuant to clause (c)(1) of Section 4.06 and
(II) the Debt to Operating Cash Flow Ratio pursuant to clause (b) of Section
4.06 in con-
8
nection with determining whether a Restricted Payment by the Company pursuant to
clause (i), (ii) or (iii) of Section 4.06 is permitted under such covenant, the
net income of any Restricted Subsidiary shall be excluded to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is not at the time (regardless of any waiver) permitted, directly
or indirectly, by reason of any Payment Restriction; provided, however, that net
income shall not be so excluded in determining whether the Company could incur
$1.00 of Indebtedness under the Debt to Operating Cash Flow Ratio of the first
paragraph of Section 4.04 (A) (or in calculating Cumulative Available Cash Flow)
for purposes of determining whether any Restricted Payment other than those
referred to in clause (y) of this sentence is permitted under Section 4.06, (B)
for purposes of determining whether a Designation is permitted pursuant to
clause (b) of the first paragraph of Section 4.17 and (C) for purposes of
determining compliance with clause (a)(iii) of Section 5.01 (unless the
applicable transaction involves the Incurrence by the Company of additional
Indebtedness).
"Consolidated Net Worth" with respect to any Person means the equity of the
holders of Qualified Equity Interests of such Person and its Restricted
Subsidiaries, as reflected in a balance sheet of such Person determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Operating Cash Flow" means, with respect to any period,
Consolidated Net Income for such period increased (without duplication) by the
sum of (i) Consolidated Income Tax Expense accrued according to GAAP for such
period to the extent deducted in determining Consolidated Net Income for such
period; (ii) Consolidated Interest Expense (other than dividends on Preferred
Equity Interests) for such period to the extent deducted in determining
Consolidated Net Income for such period; and (iii) depreciation, amortization
and any other non-cash items for such period to the extent deducted in
determining Consolidated Net Income for such period (other than any non-cash
item which requires the accrual of, or a reserve for, cash charges for any
future 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.
9
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may give
notice to the Issuers.
"Cumulative Available Cash Flow" means, as at any date of determination,
the positive cumulative Consolidated Operating Cash Flow realized during the
period commencing on the 1997 Notes 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.
"Debt to Operating Cash Flow Ratio" means the ratio of (i) the Total
Consolidated Indebtedness as of the date of calculation (the "Determination
Date") to (ii) four times the Consolidated Operating Cash Flow for the latest
fiscal quarter 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 Asset 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 Asset 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
10
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.
"Default" means any event that is or with the passing of time or giving of
notice or both would be an Event of Default.
"Depository" means, with respect to Securities issued in the form of one or
more Global Securities, DTC or another Person designated as Depository by the
Issuers, which Person must be a clearing agency registered under Section 17A of
the Exchange Act.
"Designation" has the meaning set forth in Section 4.17.
"Designation Amount" has the meaning set forth in Section 4.17.
"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.
"DTC" means The Depository Trust Company.
"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.
11
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Exchange Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"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 pressure
or compulsion to complete the transaction; provided, however, that the Fair
Market Value of any such asset or assets shall be determined 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.
"FV Inc." means FrontierVision Inc., a Delaware corporation.
"FVOP" means FrontierVision Operating Partners, L.P., a Delaware limited
partnership.
"FVOP Indenture" means the Indenture dated as of October 7, 1996 among
FVOP, FrontierVision Capital Corporation and Colorado National Bank, as trustee.
"FVP GP" means FVP GP, L.P., a Delaware limited partnership.
"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 and which are consistently applied for all applicable periods.
"General Partner" means FrontierVision Partners, L.P., a Delaware limited
partnership.
"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),
12
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.
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the books of the Registrar or any co-Registrar.
"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). Indebtedness of any Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
(or is merged into or consolidates with the Company or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Company or any Restricted Subsidiary),
shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with the Company or any Restricted
Subsidiary.
"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, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
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
13
other accrued liabilities arising in the ordinary course of business which are
not overdue or which are being contested in good faith), (v) every Capitalized
Lease Obligation of such Person, (vi) every net obligation under interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements of such Person, (vii) every obligation of the type referred to in
clauses (i) through (vi) 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 (viii) 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 (i) through (vii) 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 standby 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, (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, including in
connection with the requirements of cable television franchising authorities,
and otherwise consistent with industry practice.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Financial Advisor" means a nationally recognized investment
banking firm (i) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in the Company
and (ii) which, in the judgment of the Board of Directors of the
14
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Global Securities" means the Regulation S Global Security and the
144A Global Security, each of which contains a Securities Act Legend.
"Initial Securities" means the Securities containing a Securities Act
Legend.
"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)
of Regulation D promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"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.
"Investment" means, with respect to any Person, any advance, loan, account
receivable (other than an account receivable arising in the ordinary course of
business), or other extension of credit (including, without limitation, by means
of any guarantee) or any capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others, or otherwise) or any purchase or ownership of any stocks, bonds, notes,
debentures or other securities of, any other Person.
"Issue Date" means the original issue date of the Securities, December 9,
1998.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of each of the Issuers by its respective Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, President or a Vice
President, and by its respective Treasurer, an Assistant Treasurer, Secretary or
an Assistant Secretary, and delivered to the Trustee.
"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
15
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
"Maturity Date" means the date which is set forth on the face of the
Securities on which the Securities will mature.
"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, net of (i) 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, (ii) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (iii) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale, (iv) 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 (v) with
respect to Asset Sales by Restricted Subsidiaries, the portion of such cash
payments attributable to Persons holding a minority interest in such Restricted
Subsidiaries.
"1997 Notes" means the $237,650,000 aggregate principal amount at maturity
11 7/8% Senior Discount Notes due 2007 of the Company and FrontierVision
Holdings Capital Corporation issued under the 1997 Notes Indenture.
"1997 Notes Indenture" means the Indenture dated as of September 19, 1997
among the Company, FrontierVision Holdings Capital Corporation, as issuers, and
U.S. Bank National Association (d/b/a Colorado National Bank), as trustee.
"1997 Notes Issue Date" means September 19, 1997.
"Offer" has the meaning set forth in the definition of "Offer to Purchase"
below.
16
"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 Accreted Value 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 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 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 at Maturity of the outstanding
Securities offered to be purchased by the Company pursuant to the
Offer to Purchase (including, if less than all of the Securities, 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 at Maturity 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 in a denomination of less than $1,000 Principal
Amount at Maturity must be tendered in whole;
17
(6) the place or places where Securities are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that Securities not tendered or tendered but not purchased by the
Company pursuant to the Offer to Purchase will continue to accrete
Accreted Value as provided in this Indenture;
(8) 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 as provided in this Indenture;
(9) 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 the Accreted Value thereof will cease to
increase on and that interest thereon shall cease to accrue on and
after the Purchase Date;
(10) 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);
(11) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next
preceding the Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
Principal Amount at Maturity 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;
(12) that (a) if Securities with an aggregate Accreted Value 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
Se-
18
curities and (b) if Securities with an aggregate Accreted Value in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Securities with
an aggregate Accreted Value equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that no
Securities in denominations of less than $1,000 Principal Amount at
Maturity are purchased in part); and
(13) 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 at Maturity 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, with respect to any Person, the Chairman of the Board of
Directors, the President, any Vice President, the Chief Financial Officer, the
Treasurer, or the Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of each of FV Inc. and
Capital complying with Sections 13.04 and 13.05; provided, however, that when
the terms of this Indenture require the delivery of an Officers' Certificate of
the Company only, such Officers' Certificate shall mean a certificate signed by
two Officers or by an Officer and an Assistant Treasurer or Assistant Secretary
of FV Inc. complying with Sections 13.04 and 13.05.
"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 Issuers or the Trustee.
"Participant" means any Person who has an account with DTC.
19
"Payment Restriction" has the meaning set forth in Section 4.16.
"Permitted Holders" means any of (a) the General Partner, FVP GP or FV Inc.
for so long as a majority of the voting power of the Voting Equity Interests of
such Person is beneficially owned by any of the Persons listed in the other
clauses of this definition, (b) Xxxxx X. Xxxxxx, the President and Chief
Executive Officer of FV Inc. on the Issue Date, (c) Xxxx X. Xxx, the Senior Vice
President and Chief Financial Officer of FV Inc. on the Issue Date, (d) any of
X.X. Xxxxxx Investment Corporation, a Delaware corporation, Olympus Cable, Inc.,
a Delaware corporation, First Union Capital Partners, Inc., a Virginia
corporation, and 1818 II Cable Corp., a Delaware corporation, (e) any Person
controlling, controlled by or under common control with any other Person
described in clauses (a) - (d) of this definition and (f) (i) the spouse or
children of any Person named in clause (b) or (c) of this definition and any
trust for the benefit of any such Persons or their respective spouses or
children; provided, however, that with respect to any such trust, such Persons
have the sole right to direct and control such trust and any Voting Equity
Interest owned by such trust, and (ii) any such Person's estate, executor,
administrator and heirs.
"Permitted Investments" means (a) Cash Equivalents; (b) Investments in
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (c) loans and
advances to employees made in the ordinary course of business not to exceed $1
million in the aggregate at any one time outstanding; (d) Interest Rate
Protection Obligations; (e) bonds, notes, debentures or other securities
received as a result of Asset Sales permitted under Section 4.05 not to exceed
25% of the total consideration for such Asset Sales; (f) transactions with
officers, directors and employees of the Company, the General Partner, FVP GP,
FV Inc. or any Restricted Subsidiary entered into in ordinary course of business
(including compensation or employee benefit arrangements with any such director
or employee) and consistent with past business practices; (g) Investments
existing as of the 1997 Notes Issue Date and any amendment, extension, renewal
or modification thereof to the extent that any such amendment, extension,
renewal or modification does not require the Company or any Restricted
Subsidiary to make any additional cash or non-cash payments or provide
additional services in connection therewith; (h) any Investment for which the
sole consideration provided is Qualified Equity Interests of the Company; and
(i) any Investment
20
consisting of a guarantee permitted under clause (e) of Section 4.04.
"Permitted Liens" means (a) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company; provided,
however, that such Liens were in existence prior to the 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 imposed by law such as
carriers', warehousemen's and mechanics' Liens and other similar Liens arising
in the ordinary course of business which secure payment of obligations not more
than sixty (60) days past due or which are being contested in good faith and by
appropriate proceedings; (c) Liens existing on the 1997 Notes Issue Date; (d)
Liens securing only (i) the Securities or (ii) the 1997 Notes in accordance with
the terms of the 1997 Notes Indenture as in effect on the Issue Date; (e) Liens
for taxes, assessments or governmental charges claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided, however, that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (f) easements, reservations of rights of
way, restrictions and other similar easements, licenses, restrictions on the use
of properties, or minor imperfections of title that in the aggregate are not
material in amount and do not in any case materially detract from the properties
subject thereto or interfere with the ordinary conduct of the business of the
Company and the Restricted Subsidiaries; (g) Liens resulting from the deposit of
cash or securities in connection with contracts, tenders or expropriation
proceedings, or to secure workers' compensation, surety or appeal bonds, costs
of litigation when required by law and public and statutory obligations or
obligations under franchise arrangements entered into in the ordinary course of
business; (h) Liens securing Indebtedness consisting of Capitalized Lease
Obligations of the Company, Purchase Money Indebtedness of the Company, mortgage
financings, industrial revenue bonds of the Company or other monetary
obligations of the Company, 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
21
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 90 days of such purchase, construction,
installation, repair, addition or improvement; (i) 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);
and (j) Liens securing letters of credit entered into in the ordinary course of
business and consistent with past business practice.
"Permitted Strategic Investment" means an Investment in a Person
(including, without limitation, a Restricted Subsidiary which is not a Wholly
Owned Restricted Subsidiary and an Unrestricted Subsidiary) engaged in a Related
Business if, at the time of and immediately after giving pro forma effect to
such Investment (and any related transaction or series of transactions), the
Debt to Operating Cash Flow Ratio would be less than or equal to (i) 7.0 to 1.0
if the date of such Investment is on or before December 31, 1998 and (ii) 6.5 to
1.0 thereafter.
"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.
"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.
"principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Principal Amount at Maturity" means, with respect to each $1,000 original
principal amount at maturity of the Secu-
22
rities, (i) $1,000 if no Cash Interest Election is made by the Issuers, or (ii)
if the Cash Interest Election is made, the Accreted Value of such Securities as
of the Semi-Annual Accrual Date on which the Cash Interest Election is made.
"Private Exchange Securities" has the meaning set forth in the Registration
Rights Agreement.
"Public Equity Offering" means, with respect to any Person, a public
offering by such Person of some or all of its Qualified Equity Interests, the
net proceeds of which (after deducting any underwriting discounts and
commissions) exceed $25.0 million.
"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.
"Purchase Price" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Qualified Equity Interest" in any Person means any Equity Interest in such
Person other than any Disqualified Equity Interest.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
under Rule 144A under the Securities Act.
"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 as Exhibit A.
23
"Registration Rights Agreement" means the Registration Rights Agreement
dated the date hereof among the Issuers, X.X. Xxxxxx Securities Inc. and Chase
Securities Inc.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means a cable or broadcast television,
telecommunications, Internet or data transmission business or a business
reasonably related thereto.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Physical Security" means a Physical Security containing, or
required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated by the Board of Directors of the Company, by a resolution of the
Board of Directors of the Company delivered to the Trustee, as an Unrestricted
Subsidiary pursuant to Section 4.17. 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.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 11 7/8% Senior Discount Notes due 2007, Series B, as
amended or supplemented from time to time pursuant to the terms of this
Indenture, that are issued under this Indenture.
"Securities Custodian" means Colorado National Bank, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"Semi-Annual Accrual Date" has the meaning set forth in the definition of
"Accreted Value."
"Senior Credit Facility" means the Amended and Restated Credit Agreement,
dated as of April 9, 1996, between the Company, the lenders named therein, The
Chase Manhattan Bank,
24
as Administrative Agent, X.X. Xxxxxx Securities Inc., as Syndication Agent, and
CIBC Inc., as Managing Agent, including any deferrals, renewals, extensions,
replacements, refinancings or refundings thereof, or amendments, modifications
or supplements thereto (including the Second Amended and Restated Credit
Agreement dated as of December 19, 1997) 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, guarantee and security
agreements and other instruments and agreements executed in connection
therewith.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Significant Restricted Subsidiary" means, at any date of determination,
(a) 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, and (b) any Restricted Subsidiary which, when
aggregated with all other Restricted Subsidiaries that are not otherwise
Significant Restricted Subsidiaries and as to which any event described in
clause (8) of Section 6.01 has occurred, would constitute a Significant
Restricted Subsidiary under clause (a) of this definition.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means 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.
"Strategic Equity Investment" means the issuance and sale of Qualified
Equity Interests of the Company for net proceeds to the Company of at least
$25.0 million to a Person engaged primarily in the cable television, wireless
cable television, telephone, or interactive television business.
"Subordinated Indebtedness" means any Indebtedness of the Company which is
expressly subordinated in right of payment to the Securities.
25
"Subsidiary" means, with respect to any Person, (i) 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 (ii) 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.
"Subsidiary Guarantee" has the meaning set forth in Section 4.19.
"Subsidiary Guarantor" means any Subsidiary of the Company that enters into
a Subsidiary Guarantee.
"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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 10.03.
"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.
"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.
"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.
26
"Unrestricted Global Securities" means one or more Global Securities that
do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical Securities
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means the Subsidiaries listed in the first
sentence of Section 4.17 and any other Subsidiary of the Company designated as
such pursuant to Section 4.17. 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 Section 4.17.
"UVC Note" means all Indebtedness and other obligations of FrontierVision
Operating Partners, L.P., under that certain Subordinated Promissory Note dated
November 9, 1995 to United Video Cablevision, Inc.
"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 (i) the sum of the
products obtained by multiplying (a) 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 (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) 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.
27
SECTION 1.02. Other Definitions.
Term Defined in Section
"Affiliate Transaction" 4.03
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Global Security" 2.01(a)
"144A Global Security" 2.01(a)
"Other Indebtedness" 4.19
"Participants" 2.13
"Paying Agent" 2.03
"Permitted Indebtedness" 4.04
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Restricted Payment" 4.06
"Revocation" 4.17
"Securities Act Legend" 2.06(f)
"United States Government Obligation" 9.01
"Unutilized Net Cash Proceeds" 4.05
SECTION 1.03. 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:
"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" or "obligors" on the indenture securities means the Issuers or
any other obligor on the Securities.
28
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. 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.
(a) Global Securities. Securities offered and sold to QIBs in reliance on
Rule 144A shall be issued initially substantially in the form of Exhibit A
hereto in the name of Cede & Co. as nominee of DTC, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. Such Security shall be
referred to herein as the "144A Global Security." Securities offered and sold in
reliance on Regulation S shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to
29
herein as the "Regulation S Global Security." Unrestricted Global Securities
shall be issued initially in accordance with Sections 2.06(b)(iv), 2.06(c)(ii)
and 2.06(e) in the name of Cede & Co. as nominee of DTC, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The 144A
Global Security, Regulation S Global Security and Unrestricted Global Security
are collectively referred to herein as the "Global Securities." The aggregate
Principal Amount at Maturity of each of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
as hereinafter provided.
Each Global Security shall represent such of the outstanding Securities as
shall be specified therein and each shall provide that it shall represent the
aggregate Principal Amount at Maturity of outstanding Securities from time to
time endorsed thereon and that the aggregate Principal Amount at Maturity of
outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions and transfers of
interests therein in accordance with the terms of this Indenture. Any
endorsement of a Global Security to reflect the amount of any increase or
decrease in the Principal Amount at Maturity of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions
given by the Holder thereof as required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall credit, on its
internal book-entry registration and transfer system, its Participants' accounts
with the respective interests owned by such Participants. Interests in the
Global Securities shall be limited to Participants, including Euroclear and
Cedel, and indirect Participants.
The Participants shall not have any rights either under this Indenture or
under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Issuers, the Trustee and any agent
of the Issuers or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on the Global Securities
and for all other purposes. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Participants, the operation
of customary
30
practices of DTC governing the exercise of the rights of an owner of a
beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System,"
"Terms and Conditions Governing Use of Euroclear," "General Terms and Conditions
of Cedel Bank" and "Customer Handbook" of Cedel, and successor provisions, shall
be applicable to interests in the Regulation S Global Security that are held by
the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to Institutional
Accredited Investors who are not also QIBs shall be issued substantially in the
form of Exhibit A hereto, in certificated form and issued in the names of the
purchasers thereof (or their nominees), duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. Securities in certificated
form shall be referred to herein as the "Physical Securities."
(c) Securities. The provisions of the form of Securities contained in
Exhibit A hereto are incorporated herein by reference. The Securities and the
Trustee's Certificates of Authentication shall be substantially in the form of
Exhibit A hereto. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Issuers shall approve the
form of the Securities and any notation, legend or endorsement (including
notations relating to the Guarantee) on them. If required, the Securities shall
bear the appropriate legend regarding original issue discount for federal income
tax purposes. Each Security shall be dated the date of its authentication. The
terms and provisions contained in the Securities shall constitute, and are
hereby expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
Two Officers of each of the Issuers shall sign the Securities for each of
the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security 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 officer of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive
31
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Securities for original issue in
the aggregate original Principal Amount at Maturity of up to $91,298,000 in one
or more series, (ii) Private Exchange Securities from time to time only in
exchange for a like Principal Amount at Maturity of Initial Global Securities as
of the date of such exchange and (iii) Unrestricted Securities from time to time
only (x) in exchange for a like Principal Amount at Maturity of Initial
Securities as of the date of such exchange or (y) in an aggregate Principal
Amount at Maturity as of the date of authentication of not more than the excess
of $91,298,000 (reduced, if the Cash Interest Election is made, by the aggregate
unaccreted portion of the Accreted Value of all Securities then outstanding
which would have accreted if no Cash Interest Election had been made) over the
sum of the aggregate Principal Amount at Maturity as of the date of
authentication of (A) Initial Securities then outstanding, (B) Private Exchange
Securities then outstanding and (C) Unrestricted Securities issued in accordance
with clause (iii)(x), in each case upon a written order signed by an Officer of
each of the Issuers. The order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated. The order shall also provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate Principal
Amount at Maturity of Securities outstanding at any time may not exceed
$91,298,000 (reduced, if the Cash Interest Election is made, by the aggregate
unaccreted portion of the Accreted Value of all Securities then outstanding
which would have accreted if no Cash Interest Election had been made) except as
provided in Section 2.07. The Securities shall be issued only in registered
form, without coupons and only in denominations of $1,000 Principal Amount at
Maturity and any integral multiple thereof.
SECTION 2.03. Registrar; Paying Agent; Depository.
The Issuers shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Issuers may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
32
The Issuers shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent and shall, if required, incorporate the
provisions of the TIA. The Issuers shall notify the Trustee of the name and
address of any such Agent. If the Issuers fail to maintain a Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with the provisions of Section 7.07.
The Issuers initially appoint the Trustee as Registrar and Paying Agent.
The Issuers shall give written notice to the Trustee in the event that either of
the Issuers decides to act as Registrar or Paying Agent.
The Issuers initially appoint DTC to act as Depository with respect to any
Global Securities and initially appoint the Trustee to act as Securities
Custodian with respect to any Global Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust.
The Issuers shall require each Paying Agent to agree in writing to hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal or Accreted Value of or interest on
the Securities (whether such money has been paid to it by the Issuers or any
other obligor on the Securities), and the Issuers and the Paying Agent shall
each notify the Trustee of any default by either of the Issuers (or any other
obligor on the Securities) in making any such payment. If either of the Issuers
or a Subsidiary of either of the Issuers acts as Paying Agent, it shall
segregate the money and hold it as a separate trust fund. The Issuers at any
time may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds 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 pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent shall
have no further liability for the money delivered to the Trustee.
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
Securityholders. If the Trustee is not the Registrar, the Issuers shall furnish
to the Trustee at
33
least five Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of the Global
Securities shall be by delivery. Global Securities will be exchanged by the
Issuers for Physical Securities only (i) if DTC notifies the Issuers that it is
unwilling or unable to continue to act as depositary with respect to the Global
Securities or ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by the Issuers within 120 days, (ii) at
any time if the Issuers in their sole discretion determine that the Global
Securities (in whole but not in part) should be exchanged for Physical
Securities or (iii) if the owner of an interest in the Global Securities
requests such Physical Securities, following an Event of Default under this
Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee in writing and the Trustee shall cause the aggregate
Principal Amount at Maturity of the applicable Global Security to be reduced
accordingly and direct DTC to make a corresponding reduction in its book-entry
system. The Issuers shall execute and the Trustee shall authenticate and make
available for delivery to the Person designated in the instructions a Physical
Security in the appropriate Principal Amount at Maturity. The Trustee shall make
available for delivery such Physical Securities to the Persons in whose names
such Securities are so registered. Physical Securities issued in exchange for an
Initial Global Security pursuant to this Section 2.06(a) shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained therein. Global Securities may also be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10. Every Security authenticated
and made available for delivery in exchange for, or in lieu of, a Global
Security or any portion thereof, pursuant to Section 2.07 or 2.10, shall be
authenticated and made available for delivery in the form of, and shall be, a
Global Security. A Global Security may not be exchanged for another Security
other than as provided in this Section 2.06(a).
34
(b) Transfer and Exchange of Interests in Global Securities. The transfer
and exchange of interests in Global Securities shall be effected through DTC, in
accordance with this Indenture and the procedures of DTC therefor. Interests in
Initial Global Securities shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. The Trustee shall have no obligation to ascertain DTC's compliance with any
such restrictions on transfer. Transfers of interests in Global Securities shall
also require compliance with subparagraph (i) below, as well as one or more of
the other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Securities. In
connection with all transfers and exchanges of interests in Global Securities
(other than transfers of interests in a Global Security to Persons who take
delivery thereof in the form of an interest in the same Global Security), the
transferor of such interest must deliver to the Registrar (1) instructions given
in accordance with the Applicable Procedures from a Participant or an indirect
Participant directing DTC to credit or cause to be credited an interest in the
specified Global Security in an amount equal to the interest to be transferred
or exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase and (3) instructions given by the Holder of the
Global Security to effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security. Interests
in any Initial Global Security may be transferred to Persons who take delivery
thereof in the form of an interest in the same Initial Global Security in
accordance with the transfer restrictions set forth in Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Security. Interests
in any Initial Global Security may be transferred to Persons who take delivery
thereof in the form of an interest in another Initial Global Security if the
Registrar receives the following:
(A) if the transferee will take delivery in the form of an interest in the
144A Global Security, then the transferor must deliver a certificate in the form
of Exhibit C hereto, including the certifications in item 1 thereof; or
35
(B) if the transferee will take delivery in the form of an interest in the
Regulation S Global Security, then the transferor must deliver a certificate in
the form of Exhibit C hereto, including the certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global Security for
Interests in an Unrestricted Global Security. Interests in any Initial Global
Security may be exchanged by the holder thereof for an interest in the
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of an interest in the Unrestricted Global Security if:
(A) such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global Security
proposes to exchange it for an interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit D hereto, including the
certifications in item 1(a) thereof;
(2) if the holder of such an interest in an Initial Global Security
proposes to transfer it to a Person who shall take delivery thereof in the form
of an interest in an Unrestricted Global Security, a certificate in the form of
Exhibit C hereto, including the certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an Opinion of
Counsel in form reasonably acceptable to the Issuers, to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities Act.
36
If any such transfer is effected pursuant to paragraph (B) above at a time when
an Unrestricted Global Security has not yet been issued, the Issuers shall issue
and, upon receipt of an authentication order in accordance with Section 2.02,
the Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate Principal Amount at Maturity equal to the Principal Amount at Maturity
of interests in the Initial Global Security transferred pursuant to paragraph
(B) above.
(v) Notation by the Trustee of Transfer of Interests Among Global
Securities. Upon satisfaction of the requirements for transfer of interests in
Global Securities pursuant to clauses (iii) or (iv) above, the Trustee, as
Registrar, shall reduce or cause to be reduced the aggregate Principal Amount at
Maturity of the relevant Global Security from which the interests are being
transferred, and increase or cause to be increased the aggregate Principal
Amount at Maturity of the Global Security to which the interests are being
transferred, in each case, by the Principal Amount at Maturity so transferred
and shall direct DTC to make corresponding adjustments in its book-entry system.
No transfer of interests of a Global Security shall be effected until, and any
transferee pursuant thereto shall succeed to the rights of a holder of such
interests only when, the Registrar has made appropriate adjustments to the
applicable Global Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a Global
Security.
(i) If any Holder of Physical Securities required to contain the Securities
Act Legend proposes to exchange such Securities for an interest in a Global
Security or to transfer such Physical Securities to a Person who takes delivery
thereof in the form of an interest in a Global Security, then, upon receipt by
the Registrar of the following documentation (all of which may be submitted by
facsimile):
(A) if the Holder of such Physical Securities proposes to exchange such
Securities for an interest in an Initial Global Security, a certificate from
such Holder in the form of Exhibit D hereto, including the certifications in
item 2 thereof;
37
(B) if such Physical Securities are being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the effect
set forth in Exhibit C hereto, including the certifications in item 1 thereof;
or
(C) if such Physical Securities are being transferred to a Non-U.S. Person
(as defined in Regulation S) in an offshore transaction in accordance with Rule
904 under the Securities Act, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item 2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate Principal Amount at Maturity of, in the case of clause
(B) above, the 144A Global Security or, in the case of clause (C) above, the
Regulation S Global Security, and direct DTC to make a corresponding increase in
its book-entry system.
(ii) A Holder of Physical Securities required to contain the Securities Act
Legend may exchange such Securities for an interest in the Unrestricted Global
Security or transfer such Restricted Physical Securities to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global Security
only:
(A) if such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) upon receipt by the Registrar of the following documentation (all of
which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to exchange such
Securities for an interest in the Unrestricted Global Security, a certificate
from such Holder in the form of Exhibit D hereto, including the certifications
in item 1(b) thereof;
(2) if the Holder of such Physical Securities proposes to transfer such
Securities to a
38
Person who shall take delivery thereof in the form of an interest in the
Unrestricted Global Security, a certificate in the form of Exhibit C hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an Opinion of
Counsel in form reasonably acceptable to the Issuers, to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Issuers shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted Global Securities
in an aggregate Principal Amount at Maturity equal to the Principal Amount at
Maturity of Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical Security. Following
the occurrence of one or more of the events specified in Section 2.06(a), a
Physical Security may be transferred to Persons who take delivery thereof in the
form of another Physical Security if the Registrar receives the following:
(A) if the transfer is being effected pursuant to and in accordance with
Rule 144A, then the transferor must deliver a certificate in the form of Exhibit
C hereto, including the certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and in accordance with
Regulation S, then the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item 3(b) thereof.
39
(ii) Transfer and Exchange of Restricted Physical Securities for
Unrestricted Physical Securities. Following the occurrence of one or more of the
events specified in Section 2.06(a), a Restricted Physical Security may be
exchanged by the Holder thereof for an Unrestricted Physical Security or
transferred to a Person who takes delivery thereof in the form of an
Unrestricted Physical Security if:
(A) such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives a certificate from such holder in the form of
Exhibit D hereto, including the certifications in item 1(c) thereof and an
Opinion of Counsel in form reasonably acceptable to the Issuers, to the effect
that such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in Section 2.06(f) hereof are
not required in order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are
presented by a Holder to the Registrar with a request to register the exchange
of such Physical Securities for an equal Principal Amount at Maturity of
Physical Securities of other authorized denominations, the Registrar shall make
the exchange as requested only if the Physical Securities are endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney duly authorized in
writing and shall be issued only in the name of such Holder or its nominee. The
Physical Securities issued in exchange for Physical Securities shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained herein in each case to the same extent as the Physical Securities so
exchanged.
(iv) Return of Physical Securities. In the event of a transfer pursuant to
clause (i) or (ii) above and the Holder thereof has delivered certificates
representing an aggregate Principal Amount at Maturity of Securities in excess
of that to be transferred, the Issuers shall exe-
40
cute and the Trustee shall authenticate and make available for delivery to the
Holder of such Security, without service charge, a new Physical Security or
Securities of any authorized denomination requested by the Holder, in an
aggregate Principal Amount at Maturity equal to the portion of the Security not
so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as defined
in the Registration Rights Agreement) in accordance with the Registration Rights
Agreement, the Issuers shall issue and, upon receipt of an authentication order
in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate Principal Amount at Maturity
equal to the Principal Amount at Maturity of the interests in the Initial Global
Securities tendered for acceptance (and not withdrawn) by persons participating
therein. Concurrently with the issuance of such Securities, the Trustee shall
cause the aggregate Principal Amount at Maturity of the applicable Initial
Global Securities to be reduced accordingly and direct DTC to make a
corresponding reduction in its book-entry system. The Trustee shall cancel any
Restricted Physical Certificates in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in Section 2.06(a)
have occurred, upon the occurrence of such Exchange Offer, the Issuers shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate Unrestricted Physical Securities in an
aggregate Principal Amount at Maturity equal to the Principal Amount at Maturity
of the Restricted Physical Securities tendered for acceptance by persons
participating therein.
(f) Legends. Each Initial Global Security and each Restricted Physical
Security shall bear the legend (the "Securities Act Legend") in substantially
the following form:
"THE SECURITY EVIDENCED HEREBY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE REOFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
41
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT OR (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend in
substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC,
OR BY ANY SUCH NOMINEE OF DTC OR BY DTC TO A SUCCESSOR DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.06 OF THE INDENTURE."
42
(h) Cancellation and/or Adjustment of Global Securities. At such time as
all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the Principal Amount at
Maturity of Securities represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global Security, by the
Trustee to reflect such reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers shall
execute and the Trustee shall authenticate Global Securities and Physical
Securities upon a written order signed by an Officer of each of the Issuers or
at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Issuers may require payment of a sum sufficient to
cover any stamp or transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 4.05, 4.14 and 10.05 hereof).
(iii) All Global Securities and Physical Securities issued upon any
registration of transfer or exchange of Global Securities or Physical Securities
shall be the valid obligations of the Issuers, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Securities or
Physical Securities surrendered upon such registration of transfer or exchange.
(iv) The Issuers shall not be required (A) to issue, to register the
transfer of or to exchange Securities during a period beginning at the opening
of 15 Business Days before the day of any mailing of notice of redemption of
Securities under Section 3.02 and ending at the close of business on the day of
such mailing, (B) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (C) to reg-
43
ister the transfer of or to exchange a Security between a record date and the
next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Issuers may deem and treat the Person
in whose name any Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal or Accreted Value of and
interest on such Securities and for all other purposes, and none of the Trustee,
any Agent or the Issuers shall be affected by notice to the contrary.
(vi) 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 transfers of any interest
in any Security (including any transfers between or among Participants or
beneficial owners of interests in any Global Security) or Physical 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.
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 Issuers shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Issuers and the Trustee to protect the
Issuers, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced may be required by the Trustee or the Issuers. The
Issuers and the Trustee each may charge such Holder for its expenses in
replacing such Security.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and
44
those described in this Section as not outstanding. Except as provided in
paragraph 5(b) of the Securities, a Security does not cease to be outstanding
because either of the Issuers or an Affiliate of either of the Issuers holds the
Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than either of the Issuers, a Subsidiary of
either of the Issuers or an Affiliate of either of the Issuers) holds on a
redemption date or Maturity Date money sufficient to pay the principal or
Accreted Value of, and interest, if any, on Securities payable on that date,
then on and after that date such Securities cease to be outstanding and Accreted
Value ceases to accrete or interest on them ceases to accrue, as the case may
be.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required Principal Amount at
Maturity of Securities have concurred in any direction, waiver or consent,
Securities owned by either of the Issuers, any Subsidiary Guarantor or any of
their respective 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 the Trustee actually knows
are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Issuers 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 Issuers consider appropriate for temporary Securities.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent
45
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation. Except as provided
in Section 2.07, the Issuers may not issue new Securities to replace, or reissue
or resell, Securities which the Issuers have redeemed, paid, purchased on the
open market or otherwise, or otherwise acquired or have been delivered to the
Trustee for cancellation. The Trustee (subject to the record-retention
requirements of the Exchange Act) may, but shall not be required to destroy
canceled Securities.
SECTION 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Securities, they
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Issuers for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Issuers shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
to receive the interest payable on such Interest Payment Date notwithstanding
any transfer or exchange of such Physical Security subsequent to the regular
record date and prior to such Interest Payment Date, except if and to the extent
the Issuers shall default in the payment of the interest due on such Interest
Payment Date, in which case such defaulted interest shall be paid in accordance
with Section 2.12; and in the event of an exchange of a Physical Security for a
beneficial interest in any Global Security subsequent to a regular record date
or any special record date and prior to or on the related Interest Payment Date
or other payment date under Section 2.12, any payment of the interest payable on
such payment date with respect to any such Physical Security shall be made to
the Person in whose name such Physical Security was registered on such record
date. Payments of interest on the Global Securities will be made on
46
each Interest Payment Date to the Holder of the Global Security on the record
date with respect thereto; provided, however, that, in the event of an exchange
of all or a portion of a Global Security for a Physical Security subsequent to
the regular record date or any special record date and prior to or on the
related Interest Payment Date or other payment date under Section 2.12, any
payment of interest payable on such Interest Payment Date or other payment date
with respect to the Physical Security shall be made to the Holder of the Global
Security as of the applicable record date.
(b) Subject to Section 4.01, interest shall be paid to DTC, with respect to
any Global Security held by DTC, on the applicable Interest Payment Date in
accordance with instructions received from DTC at least five Business Days
before the applicable Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuers are to effect the redemption of any Securities pursuant to
paragraph 5 of the Securities at the applicable redemption price set forth
therein, they shall notify the Trustee in writing of the redemption date and the
Principal Amount at Maturity of Securities to be redeemed.
The Issuers shall give the notice provided for in this Section 3.01 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 thereof, the Trustee shall select the Securities to be redeemed pro rata or by
lot or in such other manner as the Trustee shall deem appropriate and fair. 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 portions of the Principal Amount at Maturity of Securities but
only such
47
that no unredeemed Security shall be in a denomination of less than $1,000
Principal Amount at Maturity. 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
Issuers 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.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number;
(4) the name and address of the Paying Agent to which the Securities are to
be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Issuers default in making the redemption payment,
Accreted Value on Securities called for redemption ceases to accrete and
interest on Securities called for redemption ceases to accrue on and after the
redemption date and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender of such Securities to the Paying
Agent; and
(7) if any Security is being redeemed in part, the portion of the Principal
Amount at Maturity 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 at Maturity equal to the unredeemed portion thereof will be
issued.
At the Issuers' request, the Trustee shall give the notice of redemption on
behalf of the Issuers, in the Issuers' name and at the Issuers' expense.
48
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.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the redemption date, the Issuers shall
deposit with the Paying Agent (or if either of the Issuers is the Paying Agent,
such Issuer shall, on or before the redemption date, segregate and hold in
trust) money sufficient to pay the redemption price of and accrued and unpaid
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 Issuers to the Trustee for cancellation.
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 at Maturity
to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Issuers shall pay the Accreted Value or principal of and interest on
the Securities in the manner provided in the Securities. An installment of
Accreted Value, principal or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of the Issuers) 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 Issuers shall pay cash interest on overdue Accreted Value or principal
at 11 7/8%. The Issuers shall pay
49
interest on overdue installments of interest at 11 7/8%, to the extent lawful.
Payments of the Accreted Value or principal of and interest on any Global
Securities will be made to the Depository or its nominee, as the case may be, as
the registered owner thereof. None of the Issuers, the Trustee nor any Paying
Agent will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in any
Global Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
SECTION 4.02. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Issuers in respect of the Securities and this Indenture
may be served. The Issuers 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 Issuers 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 13.02.
The Issuers may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided that
no such designation or rescission shall in any manner relieve the Issuers of
their obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Issuers shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 4.03. Limitation on Transactions with Affiliates and Related Persons.
The Company will not, and will not permit, cause or suffer any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into any
transaction (or series of related transactions) with or for the benefit of any
of their respective Affiliates or any beneficial holder of 10% or
50
more of the Equity Interests of the Company or any officer, director or employee
of the Company or any Restricted Subsidiary (each an "Affiliate Transaction"),
unless (a) 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, (b) if
such Affiliate Transaction (or series of related Affiliate Transactions)
involves aggregate payments or other consideration having a Fair Market Value in
excess of $5.0 million, a majority of the disinterested members of the Board of
Directors of the Company shall have approved such transaction and determined
that such transaction complies with the foregoing provisions and (c) if such
Affiliate Transaction (or series of related Affiliate Transactions) involves
aggregate payments or other consideration having a Fair Market Value of $25.0
million or more, the Company shall have obtained a written opinion from an
Independent Financial Advisor stating that the consideration to be paid or
received, as the case may be, by the Company or the Restricted Subsidiary
pursuant to such Affiliate Transaction is fair to the Company or the Restricted
Subsidiary, as the case may be, from a financial point of view.
Notwithstanding the foregoing, the restrictions set forth in this Section
4.03 shall not apply to (i) transactions with or among the Company and the
Wholly Owned Restricted Subsidiaries, (ii) customary directors' fees,
indemnification and similar arrangements, consulting fees, 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) the Agreement of Limited Partnership of the Company or the
Agreement of Limited Partnership of FVOP, in each case, as in effect on the 1997
Notes Issue Date, including any amendment or extension thereof that does not
otherwise violate any other covenant set forth in this Indenture, and any
transactions undertaken pursuant to any other contractual obligations in
existence on the 1997 Notes Issue Date (as in effect on the 1997 Notes Issue
Date), (iv) the issue and sale by the Company to its partners or stockholders of
Qualified Equity Interests, (v) any Restricted Payments made in compliance with
Section 4.06 (including without limitation the making of any payments or
distributions permitted to be made in accordance with clauses (i) through (vi)
of the penultimate paragraph of Section 4.06), (vi) loans and advances to
officers, directors and employees of the Company and the Restricted
51
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, (vii) customary commercial banking, investment banking,
underwriting, placement agent or financial advisory fees paid in connection with
services rendered to the Company and its Subsidiaries in the ordinary course,
(viii) the Incurrence of intercompany Indebtedness permitted pursuant to clause
(d) under the definition of "Permitted Indebtedness" set forth in Section 4.04,
(ix) the pledge of Equity Interests of Unrestricted Subsidiaries to support the
Indebtedness thereof and (x) the Senior Credit Facility.
SECTION 4.04. Limitation on Indebtedness.
The Company will not, and will not 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 may Incur
Indebtedness and the Company or any Restricted Subsidiary 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 Operating
Cash Flow Ratio would be less than or equal to (i) 8.0 to 1.0 if the date of
such Incurrence is on or before December 31, 1998 and (ii) 7.50 to 1.0
thereafter.
The foregoing limitations will not apply to the Incurrence of any of the
following (collectively, "Permitted Indebtedness"), each of which shall be given
independent effect:
(a) Indebtedness under the Securities and this Indenture;
(b) (x) Indebtedness and Disqualified Equity Interests of the Company and
the Restricted Subsidiaries outstanding on the 1997 Notes Issue Date (including
(A) Indebtedness under the 1997 Notes and 1997 Notes Indenture, (B) Indebtedness
under the FVOP Indenture and (C) Indebtedness under the UVC Note) and (y)
Indebtedness incurred after the 1997 Notes Issue Date and prior to the Issue
Date pursuant to the first paragraph of Section 4.04 of the 1997 Notes
Indenture;
(c) Indebtedness of the Company and the Restricted Subsidiaries under the
Senior Credit Facility in an aggre-
52
gate principal amount at any one time outstanding not to exceed the sum of (A)
$650.0 million, which amount shall be reduced by (x) any permanent reduction of
commitments thereunder after the 1997 Notes Issue Date and (y) any other
repayment after the 1997 Notes Issue Date accompanied by a permanent reduction
of commitments thereunder (other than, in the case of either clause (x) or (y),
in connection with any refinancing thereof), plus (B) any amounts outstanding
under the Senior Credit Facility that utilize (or have utilized since the 1997
Notes Issue Date) subparagraph (i) of this paragraph of Section 4.04;
(d) (x) Indebtedness of any Restricted Subsidiary owed to and held by the
Company or any Wholly Owned Restricted Subsidiary and (y) Indebtedness of the
Company owed to and held by any Wholly Owned Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and performance of
the Issuers' obligations under this Indenture and the Securities; provided,
however, that an Incurrence of Indebtedness that is not permitted by this clause
(d) shall be deemed to have occurred upon (i) any sale or other disposition of
any Indebtedness of the Company or a Wholly Owned Restricted Subsidiary referred
to in this clause (d) to a Person (other than the Company or a Wholly Owned
Restricted Subsidiary), (ii) any sale or other disposition of Equity Interests
of a Wholly Owned Restricted Subsidiary which holds Indebtedness of the Company
or another Wholly Owned Restricted Subsidiary such that such Wholly Owned
Restricted Subsidiary ceases to be a Wholly Owned Restricted Subsidiary or (iii)
designation of a Wholly Owned Restricted Subsidiary which holds Indebtedness of
the Company as an Unrestricted Subsidiary;
(e) guarantees by any Restricted Subsidiary of Indebtedness of the Company;
(f) Interest Rate Protection Obligations of the Company or any Restricted
Subsidiary relating to Indebtedness of the Company or such Restricted
Subsidiary, as the case may be (which Indebtedness (i) bears interest at
fluctuating interest rates and (ii) is otherwise permitted to be Incurred under
this Section 4.04); provided, however, that the notional principal amount of
such Interest Rate Protection Obligations does not exceed the principal amount
of the Indebtedness to which such Interest Rate Protection Obligations relate;
53
(g) Purchase Money Indebtedness and Capitalized Lease Obligations of the
Company or any Restricted Subsidiary which do not exceed $10.0 million in the
aggregate at any one time outstanding (whether incurred after the 1997 Notes
Issue Date and prior to the Issue Date or after the Issue Date);
(h) Indebtedness or Disqualified Equity Interests of the Company or any
Restricted Subsidiary to the extent representing a replacement, renewal,
refinancing or extension (collectively, a "refinancing") of outstanding
Indebtedness or Disqualified Equity Interests of the Company or any Restricted
Subsidiary Incurred in compliance with the Debt to Operating Cash Flow Ratio of
the first paragraph of this Section 4.04 or clause (a) or (b) of this paragraph
of this Section 4.04; provided, however, that (i) Indebtedness or Disqualified
Equity Interests of the Company may not be refinanced under this clause (h) with
Indebtedness or Disqualified Equity Interests of any Restricted Subsidiary, (ii)
any such refinancing shall not exceed the sum of the principal amount (or, if
such Indebtedness or Disqualified Equity Interests provide for a lesser amount
to be due and payable upon a declaration of acceleration thereof at the time of
such refinancing, an amount no greater than such lesser amount) of the
Indebtedness or Disqualified Equity Interests being refinanced plus the amount
of accrued interest or dividends thereon and the amount of any reasonably
determined prepayment premium necessary to accomplish such refinancing and such
reasonable fees and expenses incurred in connection therewith, (iii)
Indebtedness representing a refinancing of Indebtedness of the Company 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 (iv)
Subordinated Indebtedness of the Company or Disqualified Equity Interests of the
Company may only be refinanced with the Subordinated Indebtedness of the Company
or Disqualified Equity Interests of the Company; and
(i) in addition to the items referred to in clauses (a) through (h) above,
Indebtedness of the Company (including any Indebtedness under the Senior Credit
Facility that utilizes this clause (i)) having an aggregate principal amount not
to exceed $25.0 million at any time outstanding (whether incurred after the 1997
Notes Issue Date and prior to the Issue Date or after the Issue Date).
54
SECTION 4.05. Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, make any Asset Sale, unless (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) either (A) at least 75% of such consideration
consists of cash or Cash Equivalents or (B) at least 75% of such consideration
consists of (x) properties and capital assets (including franchises and licenses
required to own or operate such properties) to be used in the same lines of
business being conducted by the Company or any Restricted Subsidiary at such
time or (y) Equity Interests in one or more Persons which thereby become Wholly
Owned Restricted Subsidiaries whose assets consist primarily of such properties
and capital assets. The amount of any (i) liabilities of the Company or any
Restricted Subsidiary that are 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 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 (or
are converted 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, for purposes of
determining the percentage of cash consideration received by the Company or the
Restricted Subsidiaries.
The Company or such Restricted Subsidiary, as the case may be, may (i)
apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof
to repay (x) Indebtedness of the Company secured by a Lien on the property or
assets subject to such Asset Sale or (y) Indebtedness of any Restricted
Subsidiary or (z) Indebtedness under the 1997 Notes and 1997 Notes Indenture
and, in each case permanently reduce any related commitment; provided, however,
that if Indebtedness under the revolving credit portion of the Senior Credit
Facility is repaid, the Company need not reduce the commitments for such
revolving credit portion, or (ii) commit in writing to acquire, construct or
improve properties and capital assets (including franchises and licenses
required to own or operate any such assets or properties) to be used in the same
line of business being conducted by the Company or any Restricted Sub-
55
sidiary at such time and so apply such Net Cash Proceeds within 365 days of the
receipt thereof.
To the extent all or part of the Net Cash Proceeds of any Asset Sale are
not so applied within 365 days of such Asset Sale (such Net Cash Proceeds, the
"Unutilized Net Cash Proceeds"), the Company shall, within 30 days of such 365th
day, make an Offer to Purchase from all Holders of Securities Securities with an
aggregate Accreted Value as of such Purchase Date equal to such Unutilized Net
Cash Proceeds, at a purchase price in cash equal to 100% of such Accreted Value
thereof plus accrued and unpaid interest, if any, to the applicable 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 $5.0
million, at which time the entire amount of such Unutilized Net Cash Proceeds,
and not just the amount in excess of $5.0 million, shall be applied as required
pursuant to this paragraph. In the event that any other Indebtedness of the
Company which ranks pari passu with the Securities requires the repayment or
prepayment thereof, or an offer to purchase to be made to repurchase such
Indebtedness, upon the consummation of any Asset Sale, the Company may apply the
Unutilized Net Cash Proceeds otherwise required to be applied to an Offer to
Purchase to repay, prepay or offer to purchase such other Indebtedness and to an
Offer to Purchase pro rata based upon (i) the aggregate Accreted Value of the
Securities then outstanding on the applicable Purchase Date and (ii) the
aggregate principal amount (or accreted amount, if less) of such other
Indebtedness then outstanding on such Purchase Date. The Offer to Purchase shall
remain open for a period of 20 Business Days or such longer period as may be
required by law. To the extent the aggregate Accreted Value of Securities
tendered pursuant to the Offer to Purchase exceeds the Unutilized Net Cash
Proceeds, Securities shall be purchased among Holders on a proportionate basis
(based on the relative aggregate Accreted Value of Securities validly tendered
for purchase by Holders thereof). To the extent the Unutilized Net Cash Proceeds
exceed the aggregate Accreted Value of Securities tendered by the Holders of the
Securities pursuant to the Offer to Purchase, the Company may retain and utilize
any portion of the Unutilized Net Cash Proceeds not applied to repurchase the
Securities for any purpose consistent with the other terms of this Indenture.
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 Ex-
56
change 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 an Event of Default or an event that with the passing of time or giving
of notice, or both, would constitute an Event of Default.
(b) The Company will mail the Offer for an Offer to Purchase required
pursuant to Section 4.05(a) not more than 395 days after consummation of the
Asset Sale resulting in the 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 not
tendered must be in an integral multiple of $1,000 Principal Amount at Maturity
and subject to any proration of the Offer among tendering Holders.
(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 4.05, the Company shall deliver to the Trustee
an Officers' Certificate as to the Purchase Amount.
On or prior to the Purchase Date specified in the Offer to Purchase, the
Company shall (i) accept for payment (on a pro rata basis, if necessary)
Securities or portions thereof validly tendered pursuant to such 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 a new Security or Securities equal in Principal Amount at
Maturity 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.
SECTION 4.06. Limitation on Restricted Payments.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly,
57
(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
payments or distributions made to the Company or a Wholly Owned Restricted
Subsidiary and dividends or distributions payable solely in Qualified Equity
Interests of the Company or in options, warrants or other rights to purchase
Qualified Equity Interests of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Company or any Restricted Subsidiary (other than any such
Equity Interests owned by the Company or a Wholly Owned Restricted Subsidiary);
(iii) purchase, redeem, defease or retire for value more than one year
prior to the stated maturity thereof any Subordinated Indebtedness of the
Company (other than any such Subordinated Indebtedness held by a Wholly Owned
Restricted Subsidiary); or
(iv) make any Investment (other than Permitted Investments) in any Person
(other than in the Company, a Wholly Owned Restricted Subsidiary or a Person
that becomes a Wholly Owned Restricted Subsidiary, or is merged with or into or
consolidated with the Company or a Wholly Owned Restricted Subsidiary (provided
the Company or a Wholly Owned Restricted Subsidiary is the survivor), as a
result of or in connection with such Investment)
(such payments or any other actions (other than Permitted Investments)
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 (other than Permitted Indebtedness)
under the Debt to Operating Cash Flow Ratio of the first paragraph of Section
4.04; and
58
(c) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after the
1997 Notes Issue Date does not exceed an amount equal to the sum of (1) the
difference between (x) the Cumulative Available Cash Flow determined at the time
of such Restricted Payment and (y) 140% of cumulative Consolidated Interest
Expense of the Company determined for the period commencing on the 1997 Notes
Issue Date and ending on the last day of the latest fiscal quarter for which
consolidated financial statements of the Company are available preceding the
date of such Restricted Payment, plus (2) the aggregate net proceeds (with the
value of any non-cash proceeds to be the Fair Market Value thereof as determined
by an Independent Financial Advisor) received by the Company either (x) as
capital contributions to the Company after the 1997 Notes Issue Date or (y) from
the issue and sale (other than to a Restricted Subsidiary) of its Qualified
Equity Interests after the 1997 Notes Issue Date (excluding the net proceeds
from any issuance and 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 accrued or accreted amount, if less) of any Indebtedness of the Company or
any Restricted Subsidiary Incurred after the 1997 Notes Issue Date 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 Investment
constituting a Restricted Payment made after the 1997 Notes Issue Date, an
amount (to the extent not included in the computation of Cumulative Available
Cash Flow) equal to the lesser of: (i) the return of capital with respect to
such Investment and (ii) 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) the Company's proportionate interest in the lesser of the
Fair Market Value or the net worth of any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary after the 1997 Notes Issue Date in
accordance with Section 4.17 not to exceed in any case the Designation Amount
with respect to such Restricted Subsidiary upon its Designation, minus (6) the
Designation Amount with respect to any Subsidiary of the Company which has been
designated as an Unrestricted Subsidiary after the 1997 Notes Issue Date in
accordance with Section 4.17.
59
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 provisions of
this Indenture; (ii) so long as no Default or Event of Default shall have
occurred and be continuing, the retirement of any Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially
concurrent issue and 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) so long as no
Default or Event of Default shall have occurred and be continuing, the purchase,
redemption, retirement or other acquisition of Subordinated Indebtedness of the
Company made in exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and 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 of the Company 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 of the Company having no stated
maturity for the payment of principal thereof prior to the final stated maturity
of the Securities; (iv) the payment of any dividend or distribution on Equity
Interests of the Company or any Restricted Subsidiary to the extent necessary to
permit the direct or indirect beneficial owners of such Equity Interests to pay
federal and state income tax liabilities arising from income of the Company or
such Restricted Subsidiary and attributable to them solely as a result of the
Company or such Restricted Subsidiary (and any intermediate entity through which
such holder owns such Equity Interests) being a partnership or similar
pass-through entity for federal income tax purposes; (v) so long as no Default
or Event of Default has occurred and is continuing, any Investment made out of
the net cash proceeds of the substantially concurrent issue and sale (other than
to a Restricted Subsidiary) of Qualified Equity Interests of the Company;
provided, however, that any such net cash proceeds are excluded from clause
(c)(2) of the preceding paragraph (and were not included therein at any time);
(vi) the purchase, redemption or other acquisition, cancellation or retirement
for value of Equity Interests, or options, warrants, equity appreciation rights
or other rights
60
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; (vii) the payment of any dividend or distribution on Equity
Interests of a Restricted Subsidiary out of such Restricted Subsidiary's net
income from the 1997 Notes Issue Date to Persons other than the Company or a
Restricted Subsidiary; provided that such dividend or distribution is paid pro
rata to all holders of such Equity Interests; (viii) Investments in Persons
(including, without limitation, Restricted Subsidiaries which are not Wholly
Owned Restricted Subsidiaries and Unrestricted Subsidiaries) engaged in a
Related Business, not to exceed $30.0 million at any one time outstanding from
the 1997 Notes Issue Date; and (ix) Permitted Strategic Investments.
In determining the amount of Restricted Payments permissible under this
Section 4.06, amounts expended pursuant to clauses (i), (vi) and (ix) of the
immediately preceding paragraph shall be included as Restricted Payments and
amounts expended pursuant to clauses (ii) through (v) and (vii) and (viii) 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.
SECTION 4.07. Corporate Existence.
Subject to Article Five, the Issuers shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect their respective
corporate or partnership existence, as the case may be, and the corporate,
partnership or other existence of each of the Restricted Subsidiaries in
accordance with the respective organizational documents of each such Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuers and the Restricted Subsidiaries; provided, however, that the Issuers
shall not be required to preserve any such right, license or franchise, or the
corporate or partnership existence of any 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 Issuers 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 de-
61
termination 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 Issuers 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 either of the Issuers or any of
their Restricted Subsidiaries or upon the income, profits or property of either
of the Issuers or any of their Restricted Subsidiaries and (2) all lawful claims
for labor, materials and supplies which, in each case, if unpaid, might by law
become a material liability, or Lien (other than a Permitted Lien) upon the
property, of either Issuer or any of their Restricted Subsidiaries; provided,
however, that the Issuers 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 reserves or other provision has been made.
SECTION 4.09. Notice of Defaults.
(1) In the event that any Indebtedness of either of the Issuers or any of
their Restricted 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 Issuers shall promptly give written notice to the Trustee of
such declaration, the status of such default or event and what action the
Issuers are taking or propose to take with respect thereto.
(2) Upon becoming aware of any Default or Event of Default, the Issuers
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Default or Event of Default.
62
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to it or
any of its Restricted Subsidiaries and used or useful in the conduct of its
business or the business of any of its Restricted Subsidiaries 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 shall prevent the Company or any of its
Restricted Subsidiaries 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 of the Company or of the
board of directors of the Restricted Subsidiary concerned, or of an officer (or
other agent employed by the Company or of any of its Restricted Subsidiaries) of
the Company or such Restricted Subsidiary having responsibility for any such
property, desirable in the conduct of the business of the Company or any of its
Restricted Subsidiaries, and if such discontinuance or disposal is not adverse
in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
The Issuers shall deliver to the Trustee within 100 days after the close of
each fiscal year a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of each of the
Issuers stating that a review of the activities of the Issuers 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 not the signers know
of any Default or Event of Default that occurred during such 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
Issuers are taking or propose to take with respect thereto. The first
certificate to be delivered by the Issuers pursuant to this Section 4.11 shall
be for the fiscal year ending December 31, 1998.
SECTION 4.12. Provision of Financial Information.
Whether or not the Issuers are subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision
63
thereto, the Issuers shall file with the SEC the annual reports, quarterly
reports and other documents which the Issuers 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 Issuers were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Issuers would have been required so to file such documents if the
Issuers were so required. The Issuers shall also in any event (a) within 15 days
of each Required Filing Date (whether or not permitted or required to file with
the SEC) (i) transmit by mail to all holders of Securities, as their names and
addresses appear in the note register, without cost to such holders, and (ii)
file with the Trustee, copies of the annual reports, quarterly reports and other
documents which the Issuers are 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 Issuers with the SEC is not permitted under the Exchange
Act, promptly upon written request supply copies of such documents to any
prospective Holder. The Issuers shall not be obligated to file any such reports
with the SEC if the SEC does not permit such filings for all companies similarly
situated other than due to any action or inaction by the Issuers.
Notwithstanding the foregoing provisions, this covenant shall be deemed to have
been satisfied during the period prior to the effectiveness of the Exchange
Offer Registration Statement if the Issuers cause such annual reports, quarterly
reports and other documents to be filed with the Commission by FVOP if such
filings contain substantially the same information that would be required if
such documents were filed by the Issuers. The Issuers will also comply with ss.
314(a) of the TIA.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
Each of the Issuers and the Subsidiary Guarantors 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
either of the Issuers or such Subsidiary Guarantor from paying all or any
portion of the Accreted Value or principal of and/or interest 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) each of the Issuers and the Subsidiary
Guarantors hereby expressly waives all benefit or advantage of any such law, and
64
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.
SECTION 4.14. Change of Control.
(a) The Company shall, within 35 days following the date of consummation of
a transaction resulting in a Change of Control, commence an Offer to Purchase
all outstanding Securities at a purchase price in cash equal to 101% of the
Accreted Value of the Securities on such Purchase Date plus accrued and unpaid
interest, if any, to such Purchase Date. Such Offer to Purchase will be
consummated not earlier than 20 Business Days and not later than 65 days after
the commencement thereof. 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 untendered portion of a Security
must be in an integral multiple of $1,000 Principal Amount at Maturity.
(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 a new
Security or Securities equal in Principal Amount at Maturity 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.
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 Ex-
65
change 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 an Event of Default or an event that with the passing of time or giving
of notice, or both, would constitute an Event of Default.
SECTION 4.15. [Intentionally Omitted.]
SECTION 4.16. Limitations on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not 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 Subsidiary or (c) transfer any of its properties
or assets to the Company or any other Restricted Subsidiary (any such
encumbrance or restriction in the foregoing clauses (a), (b) and (c), a "Payment
Restriction"), except for (i) any such encumbrance or restriction existing on
the 1997 Notes Issue Date, including, without limitation, pursuant to the Senior
Credit Facility, the FVOP Indenture or the 1997 Notes Indenture, in each case as
in effect on the 1997 Notes Issue Date, and any amendments, restatements,
renewals, replacements or refinancings (collectively, a "refinancing") thereof;
provided, however, that such refinancings are either (x) no more restrictive in
the aggregate with respect to such encumbrances or restrictions than those
contained in the FVOP Indenture as in effect on the 1997 Notes Issue Date or (y)
do not prohibit the payment of dividends or distributions to the Company in an
amount sufficient to pay cash interest on Securities (assuming no Cash Interest
Election is made) as required under this Indenture and on the 1997 Notes
(assuming no cash interest election under the 1997 Notes Indenture) as required
under the 1997 Notes Indenture or to pay the Principal Amount at Maturity of the
Securities at their Stated Maturity and the principal amount at maturity of the
1997 Notes at their stated maturity unless an event has occurred which permits
(or with the giving of notice or lapse of time or both would permit) the
acceleration of the maturity of any such Indebtedness, (ii) any such encumbrance
or restriction existing under or by reason of applicable law, (iii) any such
encum-
66
brance or restriction existing under or by reason of any instrument governing
Indebtedness or Equity Interests of an Acquired Person acquired by the Company
or any Restricted Subsidiary after the 1997 Notes Issue Date as in effect at the
time of such acquisition (except to the extent such Indebtedness was incurred by
such Acquired Person in connection with, as a result of or in contemplation of
such acquisition); provided, however, 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, (iv) any such encumbrance or restriction existing under or by
reason of customary non-assignment provisions in leases or cable television
franchises entered into in the ordinary course of business and consistent with
past practices, (v) any such encumbrance or restriction existing under or by
reason of any agreement governing Purchase Money Indebtedness for property
acquired after the 1997 Notes Issue Date in the ordinary course of business that
only imposes encumbrances and restrictions on the property so acquired, (vi) any
such encumbrance or restriction existing under or by reason of any agreement for
the sale or disposition after the 1997 Notes Issue Date of the Equity Interests
or assets of any Restricted Subsidiary; provided, however, that such
encumbrances and restrictions described in this clause (vi) 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, (vii) any such encumbrance or restriction existing under or by reason
of any agreement governing refinancing Indebtedness permitted under clause (h)
of Section 4.04; 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, (viii) any
such encumbrance or restriction existing under or by reason of this Indenture or
(ix) any such encumbrance or restriction existing under any other agreement,
instrument or document hereafter in effect; provided, however, that the terms
and conditions of any such encumbrance or restriction either (a) are not more
restrictive than those contained in the FVOP Indenture as in effect on the 1997
Notes Issue Date or (b) in the case of any such agreement, instrument or
document governing Indebtedness, do not prohibit the payment of dividends or
distributions to the Company in an amount sufficient to pay cash interest on the
Securities (assuming no Cash Interest Election is made) as required under this
Indenture or on the 1997 Notes (assuming no cash interest election is made) as
required under the 1997 Notes Indenture or to pay the Principal
67
Amount at Maturity of the Securities at their Stated Maturity or to pay the
principal amount at maturity of the 1997 Notes at their stated maturity unless
an event has occurred which permits (or with the giving of notice or lapse of
time or both would permit) the acceleration of the maturity of any such
Indebtedness.
SECTION 4.17. Designation of Unrestricted Subsidiaries.
As of the Issue Date, there are no Unrestricted Subsidiaries other than
FrontierVision Access Partners, LLC, a Delaware limited liability company, and
Maine Security Surveillance, a Maine corporation. The Company may designate any
other Subsidiary of the Company as an "Unrestricted Subsidiary" under this
Indenture (a "Designation") only if:
(a) no Default or Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(b) at the time of and after giving effect to such Designation, the Company
could Incur $1.00 of additional Indebtedness under the Debt to Operating Cash
Flow Ratio of the first paragraph of Section 4.04; and
(c) the Company would be permitted to make an Investment (other than a
Permitted 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 Company's proportionate interest in the
Fair Market Value of such Subsidiary on such date; provided, however, that the
condition set forth in this clause (c) shall not be applicable to the
designation of a Subsidiary as an Unrestricted Subsidiary which is made as part
of an Investment or Permitted Strategic Investment made in accordance with
clause (viii) or (ix) of the penultimate paragraph of Section 4.06.
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), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the
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holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to 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 Sections 4.04 and 4.06.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a "Revocation") if:
(d) no Default or Event of Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation; and
(e) 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.
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 4.18. Limitation on Liens.
The Company will not, directly or indirectly, Incur any Liens of any kind
against or upon any of its 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 (i) Liens on Equity Interests
of Subsidiaries of the Company securing obligations under the Senior Credit
Facility, (ii) Liens on Equity Interests of Unrestricted Subsidiaries and (iii)
Permitted Liens.
SECTION 4.19. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
In the event that any Restricted Subsidiary (other than a Subsidiary
Guarantor), directly or indirectly, guarantees any Indebtedness of the Company
other than the Securities (the "Other Indebtedness"), the Company shall cause
such Re-
69
stricted Subsidiary to concurrently guarantee (a "Subsidiary Guarantee") the
Company's obligations under this Indenture and the Securities to the same extent
that such Restricted Subsidiary guaranteed the Company's obligations under the
Other Indebtedness (including waiver of subrogation, if any); provided, however,
that if such Other Indebtedness is (i) not Subordinated Indebtedness of the
Company, the Subsidiary Guarantee shall be pari passu in right of payment with
the guarantee of the Other Indebtedness or (ii) Subordinated Indebtedness of the
Company, the Subsidiary Guarantee shall be senior in right of payment to the
guarantee of the Other Indebtedness; provided, further, however, that each
Subsidiary issuing a Subsidiary Guarantee will be automatically and
unconditionally released and discharged from its obligations under such
Subsidiary Guarantee upon the release or discharge of the guarantee of the Other
Indebtedness that resulted in the creation of such Subsidiary Guarantee, except
a discharge or release by, or as a result of, any payment under the guarantee of
such Other Indebtedness by such Subsidiary Guarantor. The Company shall cause
each Restricted Subsidiary issuing a Subsidiary Guarantee to (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Securities
and this Indenture on the terms set forth in Article Eleven, (ii) execute and
deliver a Subsidiary Guarantee substantially in the form set forth on Exhibit B
hereto, (iii) deliver to the Trustee an opinion of counsel that such
supplemental indenture has been duly authorized, executed and delivered by such
Restricted Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary (which opinion may be subject to
customary assumptions and qualifications) and (iv) execute and deliver to the
Initial Purchasers (as defined in the Registration Rights Agreement) a
counterpart to the Registration Rights Agreement as a Subsidiary Guarantor
thereunder. Thereafter, such Restricted Subsidiary shall (unless released in
accordance with the terms of this Indenture) be a Subsidiary Guarantor for all
purposes of this Indenture.
SECTION 4.20. Limitation on Conduct of Business of Capital.
Capital will not own any operating assets or other properties or conduct
any business other than to serve as an Issuer and an obligor on the Securities
and as a guarantor of obligations under the Senior Credit Facility.
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ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Merger, Sale of Assets, etc.
(a) The Issuers will not consolidate with or merge with or into (whether or
not such Issuer is the Surviving Person) any other entity and the Issuers will
not and will not permit any of their respective Restricted Subsidiaries to sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially all
of such Issuer's properties and assets (determined, in the case of the Company,
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) such Issuer shall be the Surviving Person or (y) the Surviving Person
(if other than such Issuer) shall be, in the case of Capital, a corporation or,
in any other case, a corporation, partnership, limited liability company,
limited liability limited partnership or trust 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 all the Securities and the performance and
observance of every covenant of this Indenture to be performed or observed on
the part of the applicable Issuer; (ii) immediately thereafter, no Default or
Event of Default shall have occurred and be continuing; (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 latest fiscal quarter for which
consolidated financial statements of the Company are available, at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the Debt to
Operating Cash Flow Ratio of the first paragraph of Section 4.04; and (iv)
immediately thereafter the Surviving Person shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of such Issuer immediately
prior to such transaction.
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(b) Subject to the requirements of the immediately preceding paragraph, in
the event of a sale of all or substantially all of the assets of any Subsidiary
Guarantor or all of the Equity Interests of any Subsidiary Guarantor, by way of
merger, consolidation or otherwise, then the Surviving Person of any such merger
or consolidation, or such Subsidiary Guarantor, if all of its Equity Interests
are sold, shall be released and relieved of any and all obligations under the
Subsidiary Guarantee of such Subsidiary Guarantor if (i) the Person or entity
surviving such merger or consolidation or acquiring the Equity Interests of such
Subsidiary Guarantor is not a Restricted Subsidiary, and (ii) the Net Cash
Proceeds from such sale are used after such sale in a manner that complies with
the provisions of Section 4.05. Except as provided in the preceding sentence, no
Subsidiary Guarantor shall consolidate with or merge with or into another
Person, whether or not such Person is affiliated with such Subsidiary Guarantor
and whether or not such Subsidiary Guarantor is the Surviving Person, unless (i)
the Surviving Person is a corporation, partnership, limited liability company,
limited liability limited partnership or trust organized or existing under the
laws of the United States, any State thereof or the District of Columbia, (ii)
the Surviving Person (if other than such Subsidiary Guarantor) assumes all the
obligations of such Subsidiary Guarantor under the Securities and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee, (iii) at the time of and immediately after such Disposition, no Default
or Event of Default shall have occurred and be continuing, and (iv) the
Surviving Person will have Consolidated Net Worth (immediately after giving pro
forma effect to the Disposition) equal to or greater than the Consolidated Net
Worth of such Subsidiary Guarantor immediately preceding the transaction;
provided, however, that clause (iv) of this paragraph shall not be a condition
to a merger or consolidation of a Subsidiary Guarantor if such merger or
consolidation only involves the Company and/or one or more Wholly Owned
Restricted Subsidiaries.
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 an Issuer or any
Subsidiary Guarantor is not the Surviving Person and the Surviving Person is to
assume all the obligations of such Issuer or any such Subsidiary Guarantor under
the Securities and this Indenture pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of,
72
such Issuer or such Subsidiary Guarantor, as the case may be, and such Issuer or
such Subsidiary Guarantor, as the case may be, shall be discharged from its
Obligations under this Indenture, the Securities or its Subsidiary Guarantee, as
the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default":
(1) failure to pay interest on any Securities when the same becomes due and
payable and such Default continues for a period of 30 days;
(2) failure to pay the Accreted Value of any Securities when the same
becomes due and payable at maturity, upon redemption or otherwise;
(3) failure to perform or comply with any of the provisions of Section
4.05, 4.14 or 5.01;
(4) failure to observe or perform any other covenant, warranty or agreement
contained in the Securities or this Indenture, and the Default continues for the
period and after the notice specified in the last paragraph of this Section
6.01;
(5) a default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any Restricted Subsidiary
having an outstanding principal amount of $10 million or more individually or in
the aggregate that has resulted in the acceleration of the payment of such
Indebtedness or the failure to pay principal when due at the stated maturity of
any such Indebtedness;
(6) there shall have been any final judgment or judgments (not subject to
appeal) against the Company or any Restricted Subsidiary in an amount of $10
million or more (net of any amounts covered by reputable and creditworthy
insurance companies) which remains undischarged or
73
unstayed for a period of 60 days after the date on which the right to appeal has
expired;
(7) any holder or holders of at least $10 million in aggregate principal
amount of Indebtedness of the Company or any Restricted Subsidiary, after a
default under such Indebtedness, shall notify the Trustee of the intended sale
or disposition of any assets of the Company or any Restricted Subsidiary with an
aggregate Fair Market Value (as determined in good faith by the Board of
Directors of the Company) of at least $2 million that have been pledged to or
for the benefit of such holder or holders to secure such Indebtedness or shall
commence proceedings, or take any action (including by way of setoff), to retain
in satisfaction of such Indebtedness or to collect on, seize, dispose of or
apply in satisfaction of such Indebtedness, such assets of the Company or any
Restricted Subsidiary (including funds on deposit or held pursuant to lock-box
and other similar arrangements) which continues for five Business Days after
notice has been given to the Company and the representative of such
Indebtedness;
(8) either of the Issuers or any Significant Restricted Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(9) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against either of the Issuers or any Significant
Restricted Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of either of the Issuers or any Significant
Restricted Subsidiary or for all or substantially all of its property, or
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(C) orders the liquidation of either of the Issuers or any Significant
Restricted Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60
consecutive 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
(10) other than as provided in or pursuant to any Subsidiary Guarantee or
this Indenture, such Subsidiary Guarantee ceases to be in full force and effect
or is declared null and void and unenforceable or found to be invalid or any
Subsidiary Guarantor denies its liability under its Subsidiary Guarantee (other
than by reason of a release of such Subsidiary Guarantor from its Subsidiary
Guarantee in accordance with the terms of this Indenture and such Subsidiary
Guarantee).
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 (4) is not an Event of Default until the Trustee
notifies the Issuers, or the Holders of at least 25% in aggregate Principal
Amount at Maturity of the outstanding Securities notify the Issuers and the
Trustee, of the Default in writing and the Issuers do 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 aggregate Principal Amount at Maturity 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 (8) or (9) of Section 6.01 with respect to either
of the Issuers) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate Principal Amount at Maturity of the outstanding Securities by
notice in writing to the Issuers (and to the Trustee if given by the Holders)
may declare the Accreted Value of all the outstanding Securities, together with
all accrued
75
and unpaid interest, if any, thereon, as of such date of declaration to be
immediately due and payable (provided that Securities whose Accreted Value
remains unpaid after such date of declaration shall continue to accrete pursuant
to the definition of "Accreted Value" and accrue interest as provided in the
Securities). Upon any such declaration, such Accreted Value and accrued and
unpaid interest, if any, shall become immediately due and payable.
If an Event of Default specified in clause (8) or (9) of Section 6.01 with
respect to either of the Issuers occurs, the Accreted Value of all of the
outstanding Securities, together with all accrued and unpaid interest, if any,
thereon, will ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder (provided that
Securities whose Accreted Value remains unpaid after the date of such Event of
Default shall continue to accrete pursuant to the definition of "Accreted Value"
and accrue interest as provided in the Securities).
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 at Maturity 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 Accreted Value or 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
Accreted Value or 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 De-
76
fault. 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 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate Principal Amount at Maturity of the then outstanding Securities, on
behalf of all the Holders, 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 Accreted Value or 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 10.02. The Issuers
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 Issuers, 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 ss. 316(a)(1)(B) of the TIA and such ss. 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 at
Maturity of the then outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on 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
77
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 ss.
316(a)(1)(A) of the TIA, and such ss. 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:
(1) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(2) the Holders of at least 25% in aggregate Principal Amount at Maturity
of the then outstanding Securities make a written request to the Trustee to
pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) 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
(5) during such 60-day period the Holders of a majority in Principal Amount
at Maturity of the then outstanding Securities (excluding Affiliates of either
of the Issuers) 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 Accreted Value or principal of and interest on the
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.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal 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 Issuers
or any other obligor on the Securities for the whole amount of 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
reasonable 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 Issuers (or any other
obligor upon the Securities), their 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:
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First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
Accreted Value or principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for Accreted Value or principal and interest, respectively; and
Third: to the Issuers.
The Trustee, upon prior written notice to the Issuers, 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.
All parties to this Indenture agree, and each holder of any Security by his
acceptance thereof shall be deemed to have agreed, that 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, 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 Principal Amount at Maturity of the outstanding Securities, or
to any suit instituted by any Holder for the enforcement or the payment of the
Accreted Value or 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
80
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, the Trustee shall examine the 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; and
(2) 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 an indemnity reasonably satisfactory to it
against such risk, liability, loss, fee or expense which might be incurred by it
in compliance with such request or direction.
(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 with the Issuers. Money held in trust by the
Trustee need not be
81
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) The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on an Officers' Certificate or Opinion of
Counsel.
(c) 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.
(d) Any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(e) 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.
(f) 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
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premises of the Issuers, personally or by agent or attorney.
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 Issuers or their
Affiliates with the same rights it would have if it were not Trustee. 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 Issuers' use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuers 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 or a Default or
Event of Default in complying with Section 5.01, 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 ss. 315(b) of the TIA and
such proviso to ss. 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 ss. 313(a), within 60 days after each June 15 beginning
with the June 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a report dated as of such June 15 that complies with TIA ss.
313(a); provided, however, that, if no event under TIA ss. 313(a) has occurred
in a 12 month period, no such report
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need be transmitted. The Trustee also shall comply with TIA ss. 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 Issuers 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 Issuers shall pay to the Trustee from time to time such compensation as
the Issuers 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 Issuers shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including reasonable 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 9.01 hereof.
The Issuers 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
Issuers promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Issuers promptly
shall not relieve the Issuers of their obligations hereunder except to the
extent that the Issuers are materially prejudiced thereby. The Issuers shall
defend the claim and the Trustee shall cooperate in the defense (and may employ
its own counsel)
84
at the Issuers' expense; provided, however, that the Issuers' reimbursement
obligation with respect to counsel employed by the Trustee will be limited to
the reasonable fees of such counsel. The Issuers need not pay for any settlement
made without their written consent, which consent shall not be unreasonably
withheld. The Issuers 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 Issuers' 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 Accreted Value or principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) 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 Issuers' obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuers' obligations pursuant to
Article Nine 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 Issuers in writing.
The Holders of a majority in Principal Amount at Maturity of the then
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Issuers in writing and may appoint a successor Trustee with the Issuers'
consent. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(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.
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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 Issuers shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in Principal Amount at Maturity of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. 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 Issuers or the
Holders of at least 10% in Principal Amount at Maturity of the then outstanding
Securities may petition 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 Issuers' 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,
provided such corporation shall be otherwise qualified and eligible under this
Article Seven.
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SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA xx.xx. 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 ss. 310(b), the Trustee and
the Issuers shall comply with the provisions of TIA ss. 310(b). If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Issuers' Obligations.
The Issuers may terminate their and the Subsidiary Guarantors' substantive
obligations in respect of the Securities by delivering all outstanding
Securities to the Trustee for cancellation and paying all sums payable by them
on account of principal of and interest on all Securities or otherwise. In
addition to the foregoing, the Issuers 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(8) or (9),
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 their and the
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Subsidiary Guarantors' substantive obligations in respect of the Securities
(except for their obligations to pay the principal of and interest on the
Securities to their Maturity Date and the Subsidiary Guarantors' guarantee
thereof) 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 to their
Maturity Date, (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 solely as a result of such deposit and termination
of obligations, (iii) delivering to the Trustee an Opinion of Counsel to the
effect that the Issuers' exercise of their option under this paragraph will not
result in any of the Issuers, the Trustee or the trust created by the Issuers'
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, 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 Issuers 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(8) or (9),
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 their and the Subsidiary Guarantors'
substantive obligations in respect of the Securities (including their
obligations to pay the principal of and interest on the Securities and the
Subsidiary Guarantors' guarantee thereof) 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 to their Maturity Date, (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 solely as a result of such
deposit and termination of obligations or an Opinion of Counsel based upon such
a ruling addressed to the Trustee or 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 Issuers' exercise of their option
under this
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paragraph will not result in any of the Issuers, the Trustee or the trust
created by the Issuers' 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, 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 Issuers' obligations in
Sections 2.03, 2.05, 2.06, 2.07, 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, 9.03 and 9.04 shall survive until the Securities
are no longer outstanding. Thereafter the Issuers' obligations in Sections 7.07,
9.03 and 9.04 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 Issuers' and the Subsidiary Guarantors'
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
SECTION 9.02. Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, 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 9.03. Repayment to Issuers.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to the
Issuers upon written request any excess money held by it at any time. The
Trustee shall pay to the Issuers 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 Issuers 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 Issuers. After payment to the Issuers, Securityholders entitled
to money must
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look to the Issuers 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 9.04. Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 9.01 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 Issuers'
and the Subsidiary Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Issuers have made any payment of
interest on or principal of any Securities because of the reinstatement of their
obligations, the Issuers 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 TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Issuers and the Subsidiary Guarantors, when authorized by a resolution
of their respective Boards 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 and adversely affect the rights of any Holder under this
Indenture or the Securities;
(ii) to effect the assumption by a successor Person of all
obligations of either of the Issuers under the Securities and this
Indenture in connection with any transaction complying with Article
Five of this Indenture;
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(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 and
adversely affect the rights of any Holder under this Indenture or the
Securities;
(vii) to evidence the succession of another Person to any
Subsidiary Guarantor and the assumption by any such successor of the
covenants of such Subsidiary Guarantor herein and in the Subsidiary
Guarantee;
(viii) to add to the covenants of the Issuers or the Subsidiary
Guarantors for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Issuers or any Subsidiary Guarantor;
(ix) to secure the Securities pursuant to the requirements of
or Section 4.18 or otherwise;
(x) to reflect the release of a Subsidiary Guarantor from
its obligations with respect to its Subsidiary Guarantee in accordance
with the provisions of Section 11.03 and to add a Guarantor pursuant to
the requirements of Sections 4.19 and 11.07;
provided, however, that the Issuers have delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.01.
SECTION 10.02. With Consent of Holders.
Subject to Section 6.07, the Issuers and the Subsidiary Guarantors, when
authorized by a resolution of their respective Boards 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 aggregate Principal
Amount at Maturity of the then outstanding Securities. Subject to Section 6.07,
the Holders of a majority in aggregate Principal Amount of Maturity of the then
outstanding Securities, on behalf of all Holders, may waive compliance by the
Is-
91
suers or any Subsidiary Guarantor 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 definition of Accreted Value or change the definition of
Principal Amount at Maturity or 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 Accreted Value of or the Principal Amount at Maturity of any
Security;
(3) reduce the rate or extend the time for payment of interest on any
Security;
(4) change the place or currency of payment of the Accreted Value of or 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 10.02
(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 Maturity 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 Accreted Value or of the
principal of, interest on, or redemption payment with respect to, any Security
(except a recision of acceleration of the Securities by the Holders as provided
in Section 6.02 and a waiver of the payment of default that resulted from such
acceleration);
(8) modify the ranking or priority of the Securities or the Subsidiary
Guarantee of any Subsidiary Guarantor in any manner adverse to the Holders;
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(9) release any Subsidiary Guarantor from any of its obligations under its
Subsidiary Guarantee or this Indenture otherwise than in accordance with this
Indenture; or
(10) modify the provisions relating to any Offer to Purchase required
pursuant to Section 4.05 or 4.14 in a manner materially adverse to the Holders.
It shall not be necessary for the consent of the Holders under this Section
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 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers 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 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.04. 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.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or waiver
whether or not such persons continue to be Holders 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 (10) of Sec-
93
tion 10.02. 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 10.05. 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 Issuers or the Trustee
so determines, the Issuers 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 10.06. 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 Ten is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Issuers and the
Subsidiary Guarantors, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not (except to the extent
required in the case of a supplemental indenture entered into pursuant to
Section 10.01(iv)) 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, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
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ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and severally,
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: the Accreted
Value or principal of and interest on the Securities will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest on the overdue Accreted Value or
principal and interest on any overdue interest on the Securities and all other
obligations of the Issuers to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuers, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuers, any right to require a proceeding first against the
Issuers, protest, notice and all demands whatsoever and covenants that the
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Securities, this Indenture, and this Subsidiary
Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Issuers, any Subsidiary Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Issuers or any
Subsidiary Guarantor, any amount paid by the Issuers or any Subsidiary Guarantor
to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purpose of this Subsidiary Guaran-
95
tee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.
SECTION 11.02. Severability.
In case any provision of this Subsidiary Guarantee 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.
SECTION 11.03. Release of a Guarantor.
(a) In the event that each holder of Other Indebtedness which resulted in
the creation of a Subsidiary Guarantee unconditionally releases a Subsidiary
Guarantor of all of its obligations under its guarantee of such Other
Indebtedness pursuant to a written agreement in form and substance satisfactory
to the Trustee (other than a release resulting from payment under such
guarantee) such Subsidiary Guarantor shall be automatically and unconditionally
released from all obligations under its Subsidiary Guarantee.
(b) Additionally, if the Securities are defeased in accordance with the
terms of this Indenture, or if all or substantially all of the assets of any
Subsidiary Guarantor or all of the Equity Interests of any Subsidiary Guarantor
is sold (including by issuance or otherwise) by the Company or any of its
Subsidiaries in a transaction constituting an Asset Sale and if (x) the Net Cash
Proceeds from such Asset Sale are used in accordance with Section 4.05 or (y)
the Company delivers to the Trustee an Officers' Certificate covenanting that
the Net Cash Proceeds from such Asset Sale shall be used in accordance with
Section 4.05 and within the time limits specified by such Section 4.05, then
such Subsidiary Guarantor (in the event of a sale or other disposition of all of
the Equity Interests of such Subsidiary Guarantor) or the corporation acquiring
such assets (in the event of a sale or other disposition of all or substantially
all of the assets of such Subsidiary Guarantor), shall be deemed released from
all obligations under this Article Eleven without any further action required on
the part of the Trustee or any Holder.
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(c) The Trustee shall, at the sole cost and expense of the Issuers, upon
receipt of a request by the Issuers accompanied by an Officers' Certificate
certifying as to the compliance with this Section and, with respect to clause
(b) of this Section 11.03, upon receipt at the reasonable request of the Trustee
of an Opinion of Counsel that the provisions of this Section 11.03 have been
complied with, deliver an appropriate instrument evidencing such release. Any
Subsidiary Guarantor not so released remains liable for the full amount of
Accreted Value or principal of and interest on the Securities and the other
obligations of the Issuers hereunder as provided in this Article Eleven.
SECTION 11.04. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirms that it is the intention of all such parties that the
guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of title 11 of the
United States Code, as amended, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar U.S. Federal or state or other
applicable law or that the obligations of such Subsidiary Guarantor under
Section 11.01 would otherwise be held or determined to be void, invalid or
unenforceable on account of the amount of its liability under said Section
11.01. To effectuate the foregoing intention, the Holders and such Subsidiary
Guarantor hereby irrevocably agree that the obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary
Guarantee or pursuant to Section 11.05, result in the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee not constituting such
fraudulent transfer or conveyance and not being held or determined to be void,
invalid or unenforceable.
SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
shall be
97
entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount, based on the net assets of each Subsidiary Guarantor (including the
Funding Guarantor), determined in accordance with GAAP, subject to Section
11.04, for all payments, damages and expenses incurred by that Funding Guarantor
in discharging the Issuers' obligations with respect to the Securities or any
other Subsidiary Guarantor's obligations with respect to the Subsidiary
Guarantee.
SECTION 11.06. Execution of Subsidiary Guarantee.
To further evidence their Subsidiary Guarantee to the Holders, the
Subsidiary Guarantors hereby agree to execute the Subsidiary Guarantee in
substantially the form set forth in Exhibit A to be endorsed on each Security
authenticated and delivered by the Trustee after such Subsidiary Guarantee is
executed. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on any particular Security a notation of such Subsidiary
Guarantee. Each such Subsidiary Guarantee shall be signed on behalf of each
Subsidiary Guarantor by its Chairman of the Board of Directors, its President or
one of its Vice Presidents prior to the authentication of the Security on which
it is endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Subsidiary Guarantee on behalf of such Subsidiary Guarantor. Such signature upon
the Subsidiary Guarantee may be the manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the Subsidiary
Guarantee, and in case such officer who shall have signed the Subsidiary
Guarantee shall cease to be such officer before the Security on which such
Subsidiary Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
Subsidiary Guarantee had not ceased to be such officer of the Subsidiary
Guarantor.
SECTION 11.07. Additional Subsidiary Guarantors.
Any Restricted Subsidiary of the Company which is required pursuant to
Section 4.19 to become a Subsidiary Guarantor shall execute and deliver to the
Trustee (a) a supplemental indenture in form and substance reasonably
satisfactory to the Trustee which subjects such Restricted Subsidiary to the
provisions of this Indenture as a Subsidiary Guarantor, and (b) an Opinion of
Counsel to the effect that such supplemental inden-
98
ture has been duly authorized and executed by such Restricted Subsidiary and
constitutes the legal, valid, binding and enforceable obligation of such
Restricted Subsidiary (subject to such customary exceptions concerning
fraudulent conveyance laws, creditors' rights and equitable principles).
SECTION 11.08. Subordination of Subrogation and Other Rights.
Each Subsidiary Guarantor hereby agrees that any claim against
the Issuers that arises from the payment, performance or enforcement of such
Subsidiary Guarantor's obligations under its Subsidiary Guarantee or this
Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of
such Subsidiary Guarantor shall be made before, the payment in full in cash of
all outstanding Securities in accordance with the provisions provided therefor
in this Indenture.
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. 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 xx.xx. 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.
99
SECTION 13.02. Notices.
Any notice or communication required or permitted to be given under this
Indenture 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 Issuers:
FrontierVision Holdings, L.P.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxx, Senior Vice
President and Chief Financial
Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
U.S. Bank National Association
(d/b/a Colorado National Bank)
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Issuers or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
100
Any notice or communication mailed, first class, postage prepaid, to a
Securityholder, including any notice delivered in connection with TIA ss.
310(b), TIA ss. 313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to
him at his address as set forth on the registration books of the Registrar 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 ss. 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 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or
refrain from taking any action under this Indenture, the Issuers shall furnish
to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance reasonably 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 reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
101
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate 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;
(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 or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with; 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 13.06. 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 13.07. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and the Subsidiary Guarantee without regard to principles of
conflicts of law.
SECTION 13.08. No Recourse Against Others.
A director, officer, employee, incorporator, limited or general partner or
stockholder, as such, of the Issuers or any Subsidiary Guarantor shall not have
any liability for any obligations of the Issuers or any Subsidiary Guarantor
under the Securities, any Subsidiary Guarantee or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability.
102
SECTION 13.09. Successors.
All agreements of the Issuers in this Indenture and the Securities shall
bind their successors. All agreements of each Subsidiary Guarantor in this
Indenture and Securities shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
The parties may sign any number of counterparts of this Indenture. Each
signed counterpart shall be an original, but all of them together represent the
same agreement.
SECTION 13.11. Severability.
In case any provision in this Indenture, in the Securities or in the
Subsidiary Guarantee 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 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of either of the Issuers or a Subsidiary of either of Issuers. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.13. Legal Holidays.
If a payment date occurs on a day that is not a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue for the intervening period.
[Signature Pages Follow]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By: __________________________________
Name:
Title:
FRONTIERVISION HOLDINGS CAPITAL II
CORPORATION
By: __________________________________
Name:
Title:
S-2
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: _____________________________________
Name:
Title:
EXHIBIT A
[FORM OF SECURITY]
CUSIP No. [ ]
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
11 7/8% SENIOR DISCOUNT NOTE DUE 2007, SERIES B
No. [ ] $
This Security is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of original
Principal Amount at Maturity of this Security, the issue price is $821.49 and
the amount of original issue discount is $178.51. The issue date of this
Security is December 9, 1998 and the yield to maturity is 10.093%.
FrontierVision Holdings, L.P. and FrontierVision Holdings Capital II
Corporation hereby jointly and severally promise to pay to [ ] or registered
assigns on the Maturity Date of September 15, 2007 the principal sum of (x) [ ]
DOLLARS or (y) if the Cash Interest Election is made, the Accreted Value of this
Security as of the Semi-Annual Accrual Date on which the Cash Interest Election
is made.
Interest Payment Dates: March 15 and September 15, commencing on the earlier of
(x) the March 15 or September 15, as the case may be, immediately following the
date of the Cash Interest Election and (y) March 15, 2002.
Record Dates: March 1 and September 1
Reference is hereby made to the further provisions on this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
A-1
IN WITNESS WHEREOF, FrontierVision Holdings, L.P. and FrontierVision
Holdings Capital II Corporation have caused this instrument to be signed
manually or by facsimile by each of their respective duly authorized officers.
Dated: December 9, 1998
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
FRONTIERVISION HOLDINGS CAPITAL II
CORPORATION
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Certificate of Authentication:
This is one of the 11 7/8% Senior Discount Notes due 2007, Series B,
referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By_______________________________________ Dated: December 9, 1998
Authorized Signatory
A-2
(Reverse Of Security)
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
11 7/8% Senior Discount Note due 2007, Series B
1. Interest.
FrontierVision Holdings, L.P., a Delaware limited partnership (the
"Company"), and FrontierVision Holdings Capital II Corporation, a Delaware
corporation ("Capital" and together with the Company, the "Issuers"), jointly
and severally promise to pay to the registered holder of this Security, until
the principal hereof is paid or duly provided for, interest on the principal
amount set forth on the face of this Security at a rate of 11 7/8% per annum.
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from and including the earlier of (x) the date of the
Cash Interest Election and (y) September 15, 2001 through but excluding the date
on which interest is paid or duly provided for. Interest shall be payable in
arrears on each March 15 and September 15 and at stated maturity, commencing on
the earlier of (a) the Interest Payment Date immediately following the date of
the Cash Interest Election and (b) March 15, 2002. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The principal of this Security shall not bear or accrue interest until the
earlier of (x) the date of the Cash Interest Election and (y) September 15,
2001, except in the case of a default in payment of principal and/or premium, if
any, upon acceleration, redemption or purchase and, in such case, the overdue
principal and any overdue premium shall bear interest at the rate of 11 7/8% per
annum (compounded semiannually on each March 15 and September 15) (to the extent
that the payment of such interest shall be legally enforceable), from the dates
such amounts are due until they are paid or duly provided for. To the extent,
but only to the extent, interest on amounts in default constituting original
issue discount prior to the earlier of (a) the date of the Cash Interest
Election and (b) September 15, 2001 is not permitted by law, original issue
discount shall continue to accrete until paid or duly provided for. On or after
the earlier of (a) the date of the Cash Interest Election and (b) September 15,
2001, interest on
A-3
overdue principal and premium, if any, and, to the extent permitted by law, on
overdue installments of interest will accrue, until the principal and premium,
if any, is paid or duly provided for, at the rate of 11 7/8% per annum. Interest
on any overdue principal or premium shall be payable on demand.
2. Method of Payment.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the regular record date, which shall be the March 1 or September 1
(whether or not a Business Day) next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith cease
to be payable to the Holder on such regular record date and shall be paid to the
person in whose name this Security is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Issuers, notice of which shall be given to Holders not less than 15 days
prior to such special record date. Payment of the principal of and interest on
this Security will be made at the agency of the Issuers maintained for that
purpose in New York, New York and at any other office or agency maintained by
the Issuers for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Issuers payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security register.
3. Paying Agent and Registrar.
Initially, U.S. Bank National Association (the "Trustee") will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders of Securities. The Issuers or any
of their Subsidiaries may act as Registrar, co-Registrar or, except in certain
circumstances specified in the Indenture, Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Issuers, designated as their 11 7/8% Senior Discount Notes due 2007, Series B
(the "Securities"), limited
A-4
in aggregate Principal Amount at Maturity to $91,298,000 (except for Securities
issued in substitution for destroyed, lost or stolen Securities) issuable under
an indenture dated as of December 9, 1998 (the "Indenture"), among the Issuers
and the Trustee. The terms of the Securities include those stated in the
Indenture and those required to be made part of the Indenture by the Trust
Indenture Act of 1939 (the "Act") (15 U.S. Code xx.xx. 77aaa-77bbbb) as in
effect on the date of the Indenture and the date the Indenture is qualified
under the Act. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Act for a statement of them.
Each Securityholder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
(a) The Securities are not redeemable prior to September 15, 2001, except
as provided in clause (b) below of this paragraph 5. On and after such date, the
Securities may be redeemed at any time, in whole or in part, at the option of
the Issuers, at redemption prices (expressed as percentages of the principal
amount) set forth below, if redeemed during the 12-month period beginning
September 15 of the year indicated below, in each case together with interest
accrued and unpaid to but excluding the date fixed for redemption:
Year Percentage
2001................................................. 107.917%
2002................................................. 105.937%
2003................................................. 103.958%
2004................................................. 101.979%
2005 and thereafter.................................. 100.00%
(b) At any time prior to September 15, 2000, the Issuers may redeem up to
35% of the Principal Amount at Maturity of the Securities with the net cash
proceeds received by the Company from one or more Public Equity Offerings or
Strategic Equity Investments, at a redemption price of 111.875% of the Accreted
Value thereof, together with accrued and unpaid interest, if any, to the date
fixed for redemption; provided, however, that at least 65% in aggregate
Principal Amount at Maturity of the Securities originally issued remains
outstanding im-
A-5
mediately after any such redemption (excluding any Securities owned by the
Issuers or any of their Affiliates). Notice of redemption pursuant to this
paragraph must be mailed to Holders of Securities not later than 60 days
following consummation of such Public Equity Offering.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 Principal Amount at Maturity may be redeemed in part. On and
after the redemption date, Accreted Value ceases to accrete or interest ceases
to accrue, as the case may be, on those Securities or portion of them called for
redemption.
7. Purchase upon Occurrence of a Change of Control.
Within 30 days of the occurrence of a Change of Control, the Company will
offer to purchase the Securities, in whole and not in part, at a purchase price
equal to 101% of the Accreted Value of the Securities on such Purchase Date plus
accrued and unpaid interest, if any, to such Purchase Date.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations of
$1,000 original Principal Amount at Maturity and integral multiples of $1,000
original Principal Amount at Maturity. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee or Paying Agent will repay the funds to the Issuers at their
request. After such
A-6
repayment Holders of Securities entitled to such funds must look to the Issuers
for payment unless an abandoned property law designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for certain Sections
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of funds or United
States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in Principal Amount at Maturity of the outstanding Securities, and any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in Principal Amount at Maturity of the outstanding
Securities. Without notice to or the consent of any Holder, the Issuers, any
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to make any
change that does not materially and adversely affect the rights of any Holder of
Securities.
13. Restrictive Covenants.
The Securities are general unsecured senior obligations of the Issuers
limited to the aggregate Principal Amount at Maturity of $91,298,000. The
Indenture restricts, among other things, the ability of the Company or any of
its Restricted Subsidiaries to permit any Liens to be imposed on their assets,
to make certain payments and investments, limits the Indebtedness which the
Company and its Restricted Subsidiaries may incur and limits the terms on which
the Company and its Restricted Subsidiaries may engage in Asset Sales. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Sales. The
Issuers must report annually to the Trustee on compliance with certain covenants
in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Issuers to consolidate with,
merge with or into or transfer their as-
A-7
sets to another person is conditioned upon certain requirements, including
certain financial requirements applicable to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the Accreted Value
of, or principal of all of the outstanding Securities, plus all accrued and
unpaid interest, if any, to the date the Securities become due and payable, as
the case may be, may be declared due and payable in the manner and with the
effect provided in the Indenture.
16. Trustee Dealings with Issuers.
The Trustee in its individual or any other capacity, may become the owner
or pledgee of Securities and make loans to, accept deposits from, and perform
services for either of the Issuers or their Affiliates, and may otherwise deal
with the Issuers or their Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee, incorporator, limited or general partner or
stockholder, as such, of either of the Issuers or any Subsidiary Guarantor shall
not have any liability for any obligations of the Issuers or any Subsidiary
Guarantor under the Securities, any Subsidiary Guarantee or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
A-8
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture, this Security
and any Subsidiary Guarantee without regard to principles of conflicts of law.
22. Subsidiary Guarantees.
This Security may after the date hereof be entitled to certain Subsidiary
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for the terms of any Subsidiary Guarantee.
The Issuers will furnish to any Holder of record of Securities upon written
request and without charge a copy of the Indenture.
A-9
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
Dated: ____________________________ Signed: ___________________________________
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:* __________________________________________________________
________________________
* Signature must be guaranteed by a member of the Medallion Signature Program.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box:
If you want to elect to have only part of this Security purchased by the
Company, state the Principal Amount at Maturity: $____________
Dated: _______________________________ Your Signature:_________________________
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:* __________________________________________________________
________________________
* Signature must be guaranteed by a member of the Medallion Signature Program.
A-11
EXHIBIT B
[FORM OF SUBSIDIARY GUARANTEE]
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee on a senior basis (such guarantee by each Subsidiary
Guarantor being referred to herein as the "Subsidiary Guarantee") the due and
punctual payment of the Accreted Value or the principal of, premium, if any, and
interest, if any, on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue Accreted
Value or the principal, premium and interest, if any, on the Securities, and the
due and punctual performance of all other obligations of the Issuers to the
Holders or the Trustee, all in accordance with the terms set forth in Article
Eleven of the Indenture.
The obligations of each Subsidiary Guarantor to the Holders of Securities
and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are
expressly set forth in the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Subsidiary Guarantee therein made.
This Subsidiary Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This Subsidiary Guarantee is subject to release upon the terms set forth in
the Indenture.
[Subsidiary Guarantor]
By:_________________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
Attention: [ ]
[Name and Address of Registrar]
Re: 11 7/8% Senior Discount Notes due 2007, Series B
Reference is hereby made to the Indenture, dated as of December 9, 1998
(the "Indenture"), among FrontierVision Holdings, L.P., FrontierVision Holdings
Capital Corporation II (the "Issuers"), and U.S. Bank National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
________________ (the "Transferor") owns and proposes to transfer the
Securities specified in Annex A hereto in the Principal Amount at Maturity of
$___ in such Securities (the "Transfer") to ________ (the "Transferee"), as
further specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the Principal Amount at Maturity of Securities proposed to
be Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. |_| Check if Transferee will take an Interest in the 144A Global Security.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
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2. |_| Check if Transferee will take an Interest in the Regulation S Global
Security pursuant to Regulation S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. |_| Check and complete if Transferee will take delivery of a Restricted
Physical Security pursuant to Rule 144A or Regulation S. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 1 above; or
(b) |_| such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. |_| Check if Transferee will take an Interest in the Unrestricted Global
Security. The Transfer is being effected
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pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture, and the
restrictions on transfer contained in the Indenture and the Securities Act
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
5. |_| Check if Transferee will take an Interest in the Physical Global Security
that does not bear the Securities Act Legend. One or more of the events
specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated:___________________________________
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FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| Interests in the
(i) |_| 144A Global Security (CUSIP _____), or
(ii) |_| Regulation S Global Security (CINS _____).
(b) |_| Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) |_| Interests in the:
(i) |_| 144A Global Security (CUSIP _____), or
(ii) |_| Regulation S Global Security (CINS _____), or
(iii) |_| Unrestricted Global Security (CUSIP _____); or
(b) |_| Physical Securities that bear the Securities Act
Legend;
(c) |_| Physical Securities that do not bear the Securities
Act Legend;
in accordance with the terms of the Indenture.
C-4
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
Attention: [ ]
[Name and Address of Registrar]
Re: 11 7/8% Senior Discount Notes due 2007, Series B
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of December 9, 1998
(the "Indenture"), among FrontierVision Holdings, L.P., FrontierVision Holdings
Capital Corporation II (the "Issuers") and U.S. Bank National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________ (the "Holder") owns and proposes to exchange the Securities
specified herein, in the Principal Amount at Maturity of $___ in such Security
(the "Exchange"). In the event the Holder holds Physical Securities, this
Certificate is accompanied by one or more certificates aggregating at least the
Principal Amount at Maturity of Securities proposed to be Exchanged. In
connection with the Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Physical Securities or Interests in the Initial Global
Security for Physical Securities that do not bear the Securities Act Legend or
Unrestricted Global Securities
(a) |_| Check if Exchange is from Initial Global Securities to the
Unrestricted Global Security. In connection with the Exchange of the Holder's
Initial Global Security for an interest in the Unrestricted Global Security in
an equal Principal Amount at Maturity, the Holder hereby certifies (i) the
Unrestricted Global Securities are being acquired for the Holder's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Initial Global Securities and pursuant
to and in accordance with the United States Securities Act of 1933, as amended
(the "Securities Act"), and (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Leg-
D-1
end are not required in order to maintain compliance with the Securities Act.
(b) |_| Check if Exchange is from Restricted Physical Securities to an
Interest in the Unrestricted Global Security. In connection with the Holder's
Exchange of Restricted Physical Securities for an interest in the Unrestricted
Global Security, (i) the interest in the Unrestricted Global Security is being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(c) |_| Check if Exchange is from Restricted Physical Securities to
Physical Securities that do not bear the Securities Act Legend. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. |_| Check if Exchange is from Restricted Physical Securities to Interests in
an Initial Global Security. In connection with the Exchange of the Holder's
Restricted Physical Security for interests in an Initial Global Security [[CHECK
ONE] |_| 144A Global Security, |_| Regulation S Global Security], with an equal
Principal Amount at Maturity, (i) the interests in the Initial Global Security
are being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in accordance
with the Securities Act. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Initial Global Security issued
will be subject to the restrictions on transfer enumerated in the Securities Act
Leg-
D-2
end printed on the Initial Global Securities and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
____________________________________
[Insert Name of Holder]
By:_________________________________
Name:
Title:
Dated: __________________
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