Exhibit 10.6
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XXXXX CABLE COMMUNICATIONS, INC.,
as Issuer,
FLEET NATIONAL BANK,
as Depositary
and
FLEET NATIONAL BANK, AS TRUSTEE FOR HOLDERS OF
15% SENIOR SUBORDINATED PAY-IN-KIND NOTES DUE MARCH 18, 2002
OF
XXXXX CABLE COMMUNICATIONS, INC.
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DEPOSIT AGREEMENT
Dated as of December 18, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
1.1 ................................................................... - 1 -
ARTICLE II
Deposit of Securities; Deposit Account
2.1 Deposit of Securities.............................................. - 4 -
2.2 Documents Accompanying Deposit..................................... - 4 -
2.3 Deposit Account.................................................... - 4 -
2.4 Representations and Warranties of Holders.......................... - 4 -
2.5 Representations and Warranties of the Issuer....................... - 5 -
ARTICLE III
Depositary Receipts
3.1 Issuance of Receipts............................................... - 5 -
3.2 Effect of Acceptance of Receipt.................................... - 5 -
3.3 Form of Receipts; Denominations; Execution......................... - 6 -
3.4 Numbering and Registration of Receipts............................. - 7 -
3.5 Combinations and Split-Ups of Receipts............................. - 7 -
3.6 Lost Receipts...................................................... - 7 -
3.7 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts................................. - 7 -
3.8 Cancellation and Return or Destruction of
Surrendered Receipts............................................... - 8 -
3.9 Supply of Certificates and Receipts................................ - 8 -
3.10 Filing Proofs, Certificates and Other
Information........................................................ - 8 -
3.11 Refusal of Deposit, Transfer, Etc.................................. - 8 -
3.12 Registrar; Transfer Agent.......................................... - 9 -
ARTICLE IV
Transfer of Receipts
4.1 Transferability.................................................... - 9 -
4.2 Registration of Transfer of Receipts............................... - 10 -
4.3 Effect of Execution of Transfer Application by
Transferee........................................................ - 10 -
4.4 Filing Notice of Transfers with Issuer............................ - 10 -
ARTICLE V
Pledge of Stock
5.1 Pledge of Stock................................................... - 11 -
ARTICLE VI
Duties of Depositary
6.1 Reports........................................................... - 11 -
6.2 Lists of Receipt Holders.......................................... - 11 -
6.3 Maintenance of Offices, Agencies and Transfer
Books by Depositary............................................... - 12 -
6.4 Other Obligations................................................. - 12 -
6.5 Depositary's Agents............................................... - 12 -
6.6 Duties of Depositary.............................................. - 12 -
6.7 Rights of Trustee................................................. - 14 -
ARTICLE VII
Information; Distributions; Voting Rights
7.1 Duty to Furnish and Transmit Certain
Information....................................................... - 15 -
7.2 Distributions..................................................... - 15 -
7.3 Voting............................................................ - 16 -
7.4 Indenture......................................................... - 16 -
7.5 Termination....................................................... - 16 -
ARTICLE VIII
Status and Other Activity of Depositary;
Force Majeure; Immunities; Indemnification
8.1 Depositary Not a Trustee, Issuer, Etc............................. - 17 -
8.2 Other Activity of Depositary...................................... - 17 -
8.3 Force Majeure..................................................... - 17 -
8.4 Immunities........................................................ - 18 -
8.5 Indemnification................................................... - 19 -
8.6 Tax Matters....................................................... - 19 -
8.7 Depositary Not Responsible For Validity of a
Deposited Instrument.............................................. - 19 -
ARTICLE IX
Charges; Fees; Expenses
9.1 In General........................................................ - 20 -
9.2 Responsibility for Expenses and Charges........................... - 20 -
9.3 Governmental Charges.............................................. - 20 -
9.4 Special Charges................................................... - 20 -
9.5 Notice Requirement................................................ - 20 -
ARTICLE X
Resignation; Amendment
10.1 Resignation and Removal of Depositary;
Appointment of Successor Depositary............................... - 21 -
10.2 Amendment......................................................... - 22 -
ARTICLE XI
General Provisions
11.1 Counterparts...................................................... - 22 -
11.2 Exclusive Benefit of Parties...................................... - 22 -
11.3 Invalidity of Provisions.......................................... - 23 -
11.4 Notices........................................................... - 23 -
11.5 Holders of Receipts to Be Parties................................. - 24 -
11.6 Pronouns and Plurals.............................................. - 24 -
11.7 Governing Law..................................................... - 24 -
11.8 Captions.......................................................... - 24 -
Form of Depositary Receipt........................................... Exhibit A
DEPOSIT AGREEMENT
This Agreement, made and entered into as of December 18, 1996, between and
among XXXXX CABLE COMMUNICATIONS, INC., a Texas corporation (the "Issuer"),
FLEET NATIONAL BANK, a national banking association, not in its individual
capacity, but solely as Depositary, and FLEET NATIONAL BANK, not in its
individual capacity but solely as trustee for holders of 15% senior subordinated
pay-in-kind notes due March 18, 2002 of the Issuer,
W I T N E S S E T H:
WHEREAS, the Issuer's Seconded Amended Joint Plan of Reorganization, as
modified, filed with the United Sates Bankruptcy Court for the District of
Delaware (the "Plan of Reorganization") contemplates that the parties hereto
execute and deliver this Agreement;
WHEREAS, as required by the Plan of Reorganization, the Issuer has issued
its Class C Common Stock for deposit hereunder for the benefit of the Holders of
the Depositary Receipts;
WHEREAS, in accordance with the Plan of Reorganization, Fleet National
Bank, as trustee, and the Issuer are parties to that certain Indenture dated as
of the date hereof (the "Indenture") pursuant to which the Issuer shall issue
its senior subordinated pay-in-kind notes due March 18, 2002 in the principal
amount of $49,500,000 (the "Notes") for deposit hereunder for the benefit of the
Holders of the Depositary Receipts; and
NOW, THEREFORE, in consideration of the premises and the promises
hereinafter contained, it is agreed by and among the parties hereto as follows:
ARTICLE I
Definitions
1.1 The following definitions shall, unless otherwise clearly indicated,
apply to the terms used in this Agreement:
"Agreement" means this Deposit Agreement, as it may be amended or
supplemented from time to time.
"Business Day" means each Monday through Friday of each week, except that
a legal holiday recognized as such by the Government of the United States, the
Commonwealth of
Massachusetts or of the State of New York shall not be regarded as a business
day.
"Class C Common Stock" has the meaning specified in the recitals, and
shall include any rights associated therewith in accordance with the Issuers
organizational documents.
"Commission" means the Securities and Exchange Commission or any
commission, agency or other governmental body succeeding to the powers of such
commission.
"Indenture" is defined in the recitals hereof.
"Issuer" means Xxxxx Cable Communications, Inc., a Texas Corporation
having its principal office at Four Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000.
"Corporate Office" means the corporate trust office of the Depositary,
which at the date of this Agreement is at Corporate Trust Department, Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
"Deposit Account" means the account or accounts established by the
Depositary pursuant to Section 2.3.
"Depositary" means Fleet National Bank, a national banking association, or
any successor to it as Depositary under this Agreement.
"Depositary Receipt" or "Receipt" means a depositary receipt, the text of
which is attached hereto as Exhibit A, evidencing ownership of one or more
Depositary Units signed on behalf of the Depositary by the manual signature of a
duly authorized employee of the Depositary, or a facsimile signature of the
Depositary if such receipts are countersigned by a duly authorized employee of
the appointed Registrar.
"Depositary Unit" means the interest of a Holder representing such
fractional part of the interest of all Holders in the Securities that have been
deposited with the Depositary pursuant to this Agreement.
"Depositary's Agent" means an agent appointed by the Depositary as
provided and for the purposes specified in Section 6.5.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Finova" is defined in Section 5.1.
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"Holder" means the Person in whose name such Securities are issued, and in
whose name such Securities are registered on the books of the Issuer or the
Trustee, as applicable, as of the close of business on a particular Business
Day.
"National Securities Exchange" means the American Stock Exchange, the New
York Stock Exchange and the Pacific Stock Exchange.
"Notes" has the meanings specified in the Recitals, and shall include any
additional Notes issued as payment of interest in accordance with the Indenture.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association or other entity.
"Pledge Agreement" is defined in Section 5.1.
"Pledged Stock" is defined in Section 5.1.
"Record Date" means the date established by the Issuer for determining (a)
the identity of Holders entitled to notice of or to vote at any meeting of
Stockholders of the Issuer or entitled to vote by ballot or give consent to
Issuer action in writing without a meeting or entitled to exercise rights in
respect of any other lawful action of Stockholders of the Issuer or (b) the
identity of Record Holders of Depositary Receipts entitled to receive any report
or distribution.
"Record Holder" means the Person in whose name the Depositary Receipt
evidencing such Depositary Unit is issued, and in whose name such Depositary
Units are registered on the books of the Depositary, Registrar or Transfer
Agent, as applicable, as of the close of business on a particular Business Day;
"holder" as applied to a Depositary Receipt means, if the Receipt is not
endorsed, the record holder in possession thereof or, if it is endorsed to any
Person, such Person in possession thereof or, if it is endorsed in blank, the
bearer thereof.
"Registrar" means the Depositary or any bank, trust company or other
corporation which is appointed to register Depositary Receipts, as provided in
Section 3.12.
"Securities" means each Note and share of Class C Common Stock.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
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"Transfer Agent" means the Depositary or any bank, trust company or other
Person appointed by the Issuer or the Depositary to act as transfer agent for
Depositary Units as provided in Section 3.12.
"Transfer Application" means an application and agreement for transfer of
Depositary Units in the form set forth on the back of the form of Depositary
Receipt or in a form substantially to the same effect in a separate instrument
by which a transferee requests to transfer its interest in Depositary Units, and
agrees to be bound by the terms and conditions of this Agreement.
ARTICLE II
Deposit of Securities; Deposit Account
2.1 Deposit of Securities. Subject to the terms and conditions of this
Agreement, including, without limitation Section 5.1, all Securities of each
Holder shall be deposited in the Deposit Account established by the Depositary
under this Agreement and a Depositary Receipt or Receipts shall be promptly
issued. Subject to Section 8.1 hereof, the Depository shall be the record holder
of each Security and to further the purposes of the Plan of Reorganization,
shall be deemed to have legal title thereto.
2.2 Documents Accompanying Deposit. A deposit of Securities shall be made
by delivering to the Depositary at its Corporate Office the instruments,
documents and agreements evidencing such Securities. Each Holder presenting
Securities for deposit shall file such information and execute such
certifications as the Depositary may request under the circumstances.
2.3 Deposit Account. The Depositary shall establish, at its Corporate
Office, an account in a form and in a manner satisfactory to the Depositary and
the Issuer, in which deposited Securities will be held.
2.4 Representations and Warranties of Holders. Each Holder depositing
Securities under this Agreement shall be deemed thereby to represent and warrant
that (a) such Holder is, or is duly authorized to be acting for, a Holder, and
(b) such Holder is the owner thereof or duly authorized by the owner thereof to
make the deposit. The Depositary shall not be liable to any Person for any
expense or damage incurred as a result of any breach by a Holder of these
representations and warranties, which shall survive the deposit of Securities
and the issuance of Depositary Receipts.
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2.5 Representations and Warranties of the Issuer. The Issuer represents
and warrants that (a) upon issuance, each Security will be validly issued, fully
paid and nonassessable, (b) any Depositary Receipt issued by the Depositary or
any Transfer Agent, if duly issued in the manner provided in this Agreement,
will be fully paid and nonassessable, and (c) the Issuer will not at any time
deposit or cause to be deposited any Securities, unless such securities were
issued pursuant to an effective registration statement under the Securities Act
or in a transaction not requiring registration under the Securities Act. The
Depositary shall not be liable to any Person for any expense or damage incurred
as a result of any breach by the Issuer of these representations and warranties,
which shall survive the deposit of the Securities and the issuance of Depositary
Receipts.
ARTICLE III
Depositary Receipts
3.1 Issuance of Receipts. (a) At the direction and instruction of the
Issuer and upon the deposit of the Securities of a Holder, accompanied by
documents as provided in Section 2.2, and upon payment of any tax or other
governmental charge in respect of the deposit or of the transfer of such
Securities, and payment of any fee of the Depositary provided for in Article X,
the Depositary shall issue to the Holder thereof one or more Depositary Receipts
for the Securities so deposited, in percentages and amounts as provided to the
Depositary by the Issuer, but in no event for percentages less than three
decimal points, and shall deliver such Receipt or Receipts to the Holder or,
subject to the requirements of Section 3.1(b), to a Person designated by him.
One Depositary Receipt shall be issued in a denomination evidencing all of the
Securities so deposited by such Holder unless the Holder elects to have Receipts
issued in smaller denominations, subject to Section 3.3(b).
(b) If a Holder wishes to have any of its Securities registered in
the name of, and the Depositary Receipt therefor issued to, another Person
designated by it, the transaction shall be treated as a transfer and shall be
governed by the provisions of Article IV, and the Holder and such Person shall
comply with such requirements as the Issuer or the Depositary may impose,
including the requirement that such Person execute a Transfer Application.
3.2 Effect of Acceptance of Receipt. By acceptance of a Depositary
Receipt, a Holder becomes a party to this Agreement, thereby assenting to all of
its provisions, and
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becomes bound by the terms and conditions of this Agreement and such Receipt.
The effect of acceptance of a Depositary Receipt upon a Person designated by the
Holder pursuant to Section 3.1(b) shall be as set forth in Section 4.3 in
respect of a transferee.
3.3 Form of Receipts; Denominations; Execution. (a) Depositary Receipts
shall be substantially in the form of Exhibit A to this Agreement, with
appropriate insertions, modifications and omissions as provided by the Issuer.
(b) Depositary Receipts may be issued in denominations as a
percentage (but in no event for less than thousandths of one percent) of the
number of Securities at the written direction and instruction of the Issuer.
(c) At the direction and instruction of the Issuer, Depositary
Receipts may be endorsed with, or have incorporated in the text thereof, such
legends or recitals or changes not inconsistent with the provisions of this
Agreement as may be required to comply with the provisions of this Agreement,
the certificate of incorporation or by-laws of the Issuer, any applicable law or
any regulation, or with the rules and regulations of any securities exchange
upon which the Securities or Receipts are or may be listed, or to conform with
any usage with respect thereto, or to indicate any special limitation or
restriction to which any particular Receipt may be subject, or as may for any
other reason be required. The Issuer may authorize the exchange of Depositary
Receipts for other Depositary Receipts printed and engraved in such other manner
as it shall determine.
(d) Each Depositary Receipt shall be signed on behalf of the
Depositary by the manual signature of a duly authorized employee of the
Depositary; provided that such signature may be a facsimile if a Registrar has
been appointed and the Receipt is countersigned by the manual signature of a
duly authorized employee of the Registrar. No Depositary Receipt shall be
entitled to any benefits under this Agreement or be valid or obligatory for any
purpose, unless it has been signed by such a manual signature or facsimile
signature countersigned by such manual signature. Depositary Receipts bearing
the facsimile signature of a Person who was at any time duly authorized to sign
Depositary Receipts on behalf of the Depositary shall bind the Depositary,
notwithstanding that such Person has ceased to be an employee prior to signature
by the Registrar and delivery of such Depositary Receipts or was not an employee
at the date of issuance of such Depositary Receipts or of the execution of this
Agreement.
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3.4 Numbering and Registration of Receipts. (a) Depositary Receipts issued
by the Depositary shall be numbered consecutively. The Record Holder of each
numbered Receipt shall be registered on the books of the Depositary and any
Registrar or Transfer Agent in a manner permitting identification, by Persons
authorized to have access to the books of all Record Holders and their Receipts
and the Depositary Units evidenced thereby.
(b) In addition, the Depositary shall keep records to accurately
prepare such lists as the Issuer may reasonably request from time to time,
including the lists referred to in Sections 4.5 and 6.5 hereof.
3.5 Combinations and Split-Ups of Receipts. At the direction and
instruction of the Issuer and upon surrender of a Depositary Receipt or Receipts
for split-up or combination at the Corporate Office or at any other office the
Depositary may designate for such purpose, and subject to the terms and
conditions of this Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts bearing a previously unassigned number, in authorized
denominations evidencing the same aggregate number of Depositary Units as the
number evidenced by the Receipt or Receipts surrendered. Upon the written
request of the Issuer, the Depositary shall execute and deliver new Depositary
Receipts bearing previously unassigned numbers in authorized denominations and
take such other appropriate action as may be necessary in the event the
outstanding Securities shall be divided into a greater number of Securities or
the outstanding Securities shall be combined into a smaller number of
Securities.
3.6 Lost Receipts. If any Depositary Receipt is mutilated, destroyed, lost
or stolen, the Depositary shall execute and deliver a Receipt bearing a
previously unassigned number of like form and tenor in exchange and substitution
for the mutilated, destroyed, lost or stolen Receipt; provided that the
Depositary shall require the Record Holder of the Receipt to file with the
Depositary, in a form and manner satisfactory to the Depositary, an affidavit
regarding the mutilation, destruction, loss or theft, and of his ownership of
the Receipt, and to furnish to the Depositary reasonable indemnification
(including posting indemnity bond for the benefit of the Depositary and the
Issuer) satisfactory to the Depositary and the Issuer.
3.7 Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts. As a condition precedent to the execution and delivery,
transfer, split-up, combination, surrender or exchange of any Depositary
Receipt,
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the Depositary, any Transfer Agent or any Depositary's Agent may require (a)
payment of a sum sufficient for reimbursement of any tax or other governmental
charge with respect thereto (including any such tax or charge with respect to
Securities being deposited) or an affidavit of an authorized officer of the
Issuer or other appropriate person satisfactory to the Depositary and the Issuer
that no such tax or other governmental charge is due and owing with respect
thereto, (b) production of proof satisfactory to it as to the identity and
genuineness of any signature or as to the due authorization of the action and
(c) compliance with such reasonable regulations consistent with the provisions
of this Agreement as the Depositary may establish.
3.8 Cancellation and Return or Destruction of Surrendered Receipts. All
Depositary Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled. At the direction of the Issuer, the Depositary shall either
return the cancelled Depositary Receipts to the Issuer or shall destroy the
cancelled Depositary Receipts and deliver a certificate of destruction to the
Issuer.
3.9 Supply of Certificates and Receipts. The Issuer shall deliver to the
Depositary from time to time such quantities of Depositary Receipts as the
Depositary may request to enable the Depositary to perform its obligations under
this Agreement.
3.10 Filing Proofs, Certificates and Other Information. Any Person
presenting Securities for deposit or any Record Holder of a Depositary Receipt
may be required from time to time to file information, to execute such
certificates, and to make such representations and warranties as the Depositary
may request in order to carry out the purposes of this Agreement. The Depositary
may withhold the delivery, exchange or registration of transfer of any
Depositary Receipt or any distribution in respect thereof until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made.
3.11 Refusal of Deposit, Transfer, Etc. (a) The deposit of Securities or
the delivery of Depositary Receipts may be suspended, or the transfer or
registration of a Receipt may be refused, or the registration of transfer,
surrender or exchange of outstanding Receipts may be suspended (i) during any
period when any register of owners of Depositary Units is closed, or (ii) if
such action is deemed necessary or advisable, by the Depositary, any of the
Depositary's Agents or the Issuer at any time or from time to time because of
any requirement of law or of any securities exchange upon which
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the Depositary Units or Receipts are or may be listed, government or
governmental body or commission, or under any provision of this Agreement.
(b) The Issuer may give written instructions to the Depositary to
place an appropriate legend on any Depositary Receipts in accordance with
Section 3.3(c) hereof. The Issuer may deliver a stop transfer order to the
Depositary in writing, specifying the name of the Record Holder thereof and the
number of Depositary Units or Securities so restricted. The Depositary may rely
upon such legend or stop transfer order until instructed in writing by the
Issuer to remove such legend or lift such stop transfer order.
3.12 Registrar; Transfer Agent. (a) The Issuer may, and (i) at the request
of the Depositary, or (ii) to the extent required by any law, regulation or rule
or regulation of any securities exchange on which any Depositary Units or
Receipts are listed shall, appoint a Registrar and a Transfer Agent and one or
more Co-Registrars and Co-Transfer Agents for such Depositary Units and
Receipts.
(b) A Registrar or Transfer Agent may be removed and a substitute
appointed by the Issuer.
(c) The Depositary shall, at the written request and instruction of
the Issuer, arrange for such facilities for the delivery, transfer, surrender
and exchange of Depositary Receipts as may be required by law, regulation or
rule or regulation of any securities exchange upon which the Depositary Units or
Receipts are listed.
ARTICLE IV
Transfer of Receipts
4.1 Transferability. The Depositary Receipts are investment securities and
are transferable according to the laws governing transfers of investment
securities. A Record Holder of a Depositary Receipt shall only have the
authority to convey to a purchaser or other transferee who does not execute a
Transfer Application, however, the right to negotiate such Depositary Receipt to
a purchaser or other transferee. A transferee, by acceptance of a Depositary
Receipt, (i) becomes a party to this Agreement, thereby assenting to all of its
provisions, (ii) becomes bound by the terms and conditions of this Agreement and
the Receipt and (iii) agrees that his or its transferor's duty to provide
transferee with any requisite which may be necessary to obtain registration of
the transfer of the security shall exclude any
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duty of transferor with respect to the requirement of the delivery of an
executed Transfer Application. It is a condition of the Receipt, and every
successive holder thereof by accepting transfer or holding the Receipt consents
and agrees, that until a Receipt has been transferred on the books of the
Depositary or a Transfer Agent as provided in Section 4.2, the Depositary, any
Transfer Agent and the Issuer, notwithstanding any notice to the contrary and
notwithstanding any notation or other writing on the Depositary Receipt, may
treat the Record Holder thereof at such time as the absolute owner thereof for
all purposes.
4.2 Registration of Transfer of Receipts. Subject to the terms and
conditions of this Agreement, the Depositary or any Registrar or Transfer Agent,
as applicable, shall transfer on its books, from time to time, Depositary Units
upon surrender of the Depositary Receipt or Receipts evidencing the Depositary
Units by the Record Holder, in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer and
accompanied by a properly executed Transfer Application at the Corporate Office
or at any other office as the Depositary may designate for the purpose, and
thereupon the Depositary shall issue or cause to be issued a new Depositary
Receipt or Receipts evidencing the same aggregate number of Depositary Units as
those evidenced by the Receipt or Receipts surrendered, and deliver the new
Receipt or Receipts to or upon the order of the Person or Persons entitled
thereto. Upon any transfer of fewer than all of the Depositary Units evidenced
by a Depositary Receipt, the Depositary shall issue or cause to be issued to the
Record Holder of such Depositary Receipt a new Depositary Receipt evidencing the
number of Depositary Units not being transferred.
4.3 Effect of Execution of Transfer Application by Transferee. The
Depositary shall not register the transfer of Depositary Units unless the
transferee has delivered a properly executed Transfer Application as required by
Section 4.2. A transferee who has completed and delivered a properly executed
Transfer Application shall be deemed (i) to have agreed to be bound by the terms
and conditions of this Agreement and the Depositary Receipt, and (ii) to have
represented and warranted that such transferee has authority to enter into the
this Agreement. Any such transfer shall be effective at and from the close of
business on the Business Day on which a properly executed Transfer Application
is received by the Transfer Agent.
4.4 Filing Notice of Transfers with Issuer. As promptly as practicable
after the last Business Day of each month, the
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Depositary shall cause to be prepared, as of the close of business on that day,
a list, in such form as may be requested by the Issuer, of registration of
transfers of Depositary Receipts registered by the Depositary or any Registrar
or Transfer Agent, as applicable, since the last business day of the preceding
month (hereinafter called "transfer record") and shall furnish the transfer
record to the Issuer.
ARTICLE V
Pledge of Stock
5.1 Pledge of Stock. The parties hereto acknowledge and agree that each
share of the Class C Common Stock of the Issuer intended to be deposited by the
Holders and held by the Depositary hereunder (the "Pledged Stock") has been
pledged by the Holders to Finova Capital Corporation ("Finova") pursuant to that
certain Pledge Agreement dated as of the date hereof (the "Pledge Agreement") by
and among the Issuer, each of the other shareholders of the Issuer, the
Depositary in its capacity hereunder and Finova. Subject to the terms and
conditions of this Agreement, the Depositary is hereby expressly authorized by
each of the Holders to execute and deliver each document, instrument and
agreement required to be delivered thereby in its capacity of Class C Pledgor
under the Pledge Agreement, including, without limitation, the delivery of each
and every stock certificate representing shares in the Pledged Stock, and to
take all such actions required to be taken thereby in accordance with the terms
and conditions of the Pledge Agreement.
ARTICLE VI
Duties of Depositary
6.1 Reports. The Depositary shall make available for inspection by Record
Holders of Depositary Receipts at its Corporate Office, and at such other places
as it may from time to time deem advisable, during normal business hours and
shall, upon the written request of the Issuer, furnish to the Commission any
report, financial statement or communication received from the Issuer that is
both (i) received by the Depositary in its capacity as depositary and (ii) made
generally available to the owners of Securities or Depositary Units or the
Record Holders of Depositary Receipts.
6.2 Lists of Receipt Holders. As promptly as practicable upon written
request by the Issuer, the Depositary shall furnish to the Issuer a list, as of
the date requested by the Issuer, of the names and addresses of all Record
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Holders of Depositary Receipts and the number of Depositary Units evidenced by
their Receipts, respectively. A Record Holder of Depositary Receipts whose
ownership of Securities aggregates one percent or more of the outstanding
Securities shall have the right, upon notifying the Depositary of a proper
purpose (in the sole determination of the Issuer) related to such Record
Holder's interest in the Issuer, to have furnished to them at such Record
Holder's expense a copy of the names and addresses of all Record Holders of
Depositary Receipts and the number of Depositary Units evidenced by their
Receipts as of the date specified in the written request therefor.
6.3 Maintenance of Offices, Agencies and Transfer Books by Depositary. (a)
The Depositary shall maintain as its Corporate Office and at such other office
or offices as it may designate, or as may be reasonably required by any National
Securities Exchange on which the Depositary Units or Receipts are or may be
listed, facilities for the execution and delivery, transfer, surrender and
exchange of Depositary Receipts.
(b) The Depositary shall keep books at its Corporate Office for the
transfer of Depositary Receipts. The books shall be open at all reasonable times
for inspection by the Record Holders of Depositary Receipts, provided that such
inspection shall not be for the purpose (in the sole determination of the
Issuer) of communicating with holders of Receipts in the interest of a business
or object other than the business of the Issuer or a matter related to this
Agreement or the Receipts.
6.4 Other Obligations. In performing the services set forth in this
Agreement, the Depositary shall comply with any additional requirements that may
be reasonably imposed upon it by virtue of its being deemed a transfer agent for
Depositary Receipts by any National Securities Exchange on which Depositary
Units or Receipts are listed for trading.
6.5 Depositary's Agents. The Depositary may from time to time, with the
prior written consent of the Issuer, appoint agents that may include the Issuer
and its affiliates for the purposes of this Agreement and vary or terminate the
appointment of such agents.
6.6 Duties of Depositary.
(a) Depository need perform only those duties as are specifically
set forth in the Agreement and no covenants
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or obligations shall be implied in this Agreement that are adverse to
Depositary.
(b) In the absence of bad faith on its part, Depositary may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
Depositary and confirming to the requirements of this Agreement. However,
Depositary shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Agreement.
(c) Depositary may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own will full
misconduct, except that:
(1) Depositary shall not be liable for any error of judgment
made in good faith by a Trust Officer (as defined in the Indenture), unless it
is proved that Depositary was negligent in ascertaining the pertinent facts.
(2) Depositary 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 7.3.
(d) No provision of this Agreement shall require Depositary to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or thereunder or in the exercise of
any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Every provision of this Agreement that in any way relates to
Depositary is subject to paragraphs (a), and (c) of this Section 6.6.
(f) Depositary shall not be liable for interest on any assets
received by it except as Depositary may agree with Issuer. Assets held in trust
by Depositary need not be segregated from other assets except to the extent
required by law.
- 13 -
6.7 Rights of Trustee.
Subject to Section 6.6:
(a) Depositary may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. Depositary need not
investigate any fact or matter stated in the document.
(b) Before Depositary acts or refrains from acting, it may consult
with counsel and may require an Officer's Certificate, as defined in the
Indenture, or an Opinion of Counsel, as defined in the Indenture, which shall
conform to Sections 12.4 and 12.5 of the Indenture. Depository shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(c) Depositary may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) Depositary shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers other than any liabilities arising out of its own negligence.
(e) Depositary shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or documents, but Depositary, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(f) Depositary shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request, order or
direction of any of the Record Holders pursuant to the provisions of this
Agreement, unless such Record Holders shall have offered to Depositary
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
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ARTICLE VII
Information; Distributions; Voting Rights
7.1 Duty to Furnish and Transmit Certain Information. The Issuer is
required by the Indenture to furnish to Holders certain reports and notices. If
the Issuer elects to have the Depositary deliver such reports or notices, the
Issuer shall furnish to the Depositary a sufficient quantity of each such report
or notice for transmittal to the Record Holders of Depositary Receipts. Upon
receipt of any such report or notice from the Issuer that is to be sent to
Record Holders of Depositary Receipts, the Depositary shall mail such report or
notice within ten (10) Business Days to the Record Holders of Depositary
Receipts as of the close of business on the last Business Day of the month
preceding the month in which such report or notice is received by the Depositary
or as of such other date as the Issuer may specify.
7.2 Distributions. (a) To facilitate any distributions of Secondary
Securities (as such term is defined in the Indenture) made by the Issuer to
Holders, the Depositary shall, at the Issuer's request, furnish or cause to be
furnished to the Issuer as promptly as practicable a list of the Record Holders
of Depositary Receipts and the number of Depositary Units held by each as
recorded on the books of the Depositary as of the close of business on the last
Business Day of the month preceding the month in which such request is made or
as of such other time or such other Business Day as the Issuer may specify as
the Record Date. A holder of a Depositary Receipt who is not a Record Holder
thereof shall not be entitled to receive distributions made by the Issuer.
(b) The Issuer may request the Depositary to act as paying agent
with respect to a cash or other distribution by the Issuer. A request to serve
in such capacity shall be made by the Issuer by giving notice of a proposed
distribution and the calculation of the amount of the proposed distribution to
be allocated to each Depositary Unit to the Depositary at least fifteen (15)
Business Days before the distribution is to be made. If cash is to be
distributed, the Issuer shall deposit with the Depositary, before the date on
which the distribution is to be made, funds sufficient to pay the distribution
to the Record Holders of Depositary Receipts as of the Record Date. Such deposit
shall be accompanied by the Issuer's calculation of the distribution to which
each Record Holder would be entitled, upon which calculation the Depositary
shall be entitled to rely. On the date set by the Issuer for the distribution,
the Depositary shall distribute
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the funds received from the Issuer to the Record Holders of Depositary Receipts
as of the Record Date. Such distributions shall be made to Persons who are
Record Holders as of the Record Date set for the particular distribution,
notwithstanding the length of time any such Record Holder has held any
Depositary Receipt.
7.3 Voting. Upon receipt from the Issuer of notice of any meeting at which
Record Holders of Depositary Receipts are entitled to vote or of which they are
entitled to notice, the Depositary shall, at the request of the Issuer, mail to
each Record Holder of Depositary Receipts, as of the Record Date specified in
the notice of meeting, a copy of the notice. The Issuer shall furnish sufficient
copies of the foregoing notice. Whether or not a Record Holder is entitled to
vote on any matter concerning the Issuer shall be governed by the terms of the
Indenture, the certificate of incorporation of the Issuer and applicable law.
The Depositary shall have no obligation to vote, or any liability for refraining
from voting, any security unless and until it has received written instructions
from the Holder of the Securities to be so voted that the Depositary should vote
or refrain therefrom.
7.4 Indenture. Notwithstanding anything herein to the contrary, so long as
the Depositary is also the Trustee under the Indenture, any information to be
delivered to the Record Holders of the Depositary Receipts, any distributions to
be made with respect to the Depositary Receipts, or votes to be taken by the
Record Holders thereof, shall be made in accordance with the terms of the
Indenture and in the event of any conflict between the terms hereof and the
Indenture, the terms of the Indenture shall control.
7.5 Termination.
(a) This Agreement shall terminate upon the earlier of (i) the
complete repayment of all of the Issuer's Obligations (as such term is defined
in the Indenture), (ii) the acceleration of the Issuer's Obligations pursuant to
the terms of the Indenture, and (iii) the foreclosure of the lien of FINOVA
pursuant to the Pledge Agreement (as such term is defined in the Loan
Agreement).
(b) Upon termination of this Agreement, the Depositary shall cause
the Securities then subject to this Agreement to be reissued in the name and in
the appropriate amounts to each Record Holder.
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ARTICLE VIII
Status and Other Activity of Depositary;
Force Majeure; Immunities; Indemnification
8.1 Depositary Not a Trustee, Issuer, Etc. Except as set forth in Section
2.1, neither the Depositary nor any Depositary's Agent shall have any title to
Securities deposited under this Agreement. The Depositary shall have no right or
power to sell, invest in, mortgage or borrow against any Securities deposited
under this Agreement. Neither the Depositary nor any Depositary's Agent shall
have any right by virtue of this Agreement to vote in, receive distributions of
(except as provided in Section 7.2), or have any interest in the Issuer. Neither
the Depositary nor any Depositary's Agent shall be liable for any assessments by
the Issuer. It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of securities under the Federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and the Depositary's Agents are acting
only in a ministerial capacity as depositary for Securities.
8.2 Other Activity of Depositary. Notwithstanding Section 9.1 of this
Agreement, the Depositary and any Depositary's Agent in their respective
individual capacities and in other capacities may own and deal in, and act as
registrar or transfer agent for, any class of securities of the Issuer,
including Securities, Depositary Receipts and Depositary Units.
8.3 Force Majeure. Neither the Depositary nor any Depositary's Agent nor
the Issuer (or its shareholders, directors or officers) shall incur any
liability to any holder of a Depositary Receipt if by reason of any provision of
any present or future law or any regulation under any present or future law of
the United States of America or of any other governmental authority, or by
reason of any act of God or war or other circumstance beyond its control or in
the case of the Depositary or the Depositary's Agent, the Depositary, any
Depositary's Agent, or the Issuer (or its shareholders, directors or officers)
is prevented or forbidden from doing or performing any act or thing required by
the terms of this Agreement to be done or performed; nor shall the Depositary,
any Depositary's Agent, or the Issuer (or its shareholders, directors or
officers) incur any liability to any holder of a Depositary Receipt by reason of
any nonperformance or delay caused as aforesaid in performance of any act or
thing required by the terms of this Agreement to be done or
- 17 -
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement.
8.4 Immunities. (a) Neither the Depositary (or any of its employees,
officers, directors or agents) nor any Depositary's Agent nor the Issuer (or its
shareholders, directors, officers, employees or agents) assumes any obligation
or shall be subject to any liability under this Agreement to holders of the
Depositary Receipts other than that each of them agrees to use its best judgment
and good faith in the performance of such duties as are expressly set forth in
this Agreement.
(b) Neither the Depositary (or any of its employees, officers,
directors or agents) nor any Depositary's Agent nor the Issuer (or its
shareholders, directors, officers, employees or agents) shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of Securities, Depositary Units or Depositary Receipts
that in its opinion may involve it in expense or liability unless indemnity, in
addition to that provided by Section 8.5, satisfactory to it against all expense
and liability has been furnished.
(c) Neither the Depositary (or any of its employees, officers,
directors or agents) nor any Depositary's Agent nor the Issuer (or its
shareholders, directors, officers, employees or agents) shall be liable for any
action or nonaction by it in reasonable reliance upon the advice of or
information from legal counsel, accountants, any Person presenting Securities
for deposit, any holder of a Depositary Receipt, or any other Person believed by
it to be competent to give such advice or information. The Depositary (or any of
its employees, officers, directors or agents), any Depositary's Agent, and the
Issuer (or its shareholders, directors, officers, employees or agents) may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper Person or Persons.
(d) Neither the Depositary (or any of its officers, directors,
employees or agents) nor any Depositary's Agent shall be under any obligation to
institute any action, suit, or legal proceeding or to take any other action
likely to involve expense unless the Issuer shall furnish the Depositary or the
Depositary's Agent with reasonable security for any costs and expenses which may
be incurred; but this provision shall not affect the power of the Depositary or
of the
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Depositary's Agent to take action as it may consider proper whether with or
without any security.
(e) The Depositary and the Depositary's Agent are each hereby
authorized and directed to (1) accept any instructions with respect to the
application of duties hereunder from an officer of the Issuer and to (2) apply
to such officers for advice or instruction in connection with its duties, and
shall not be liable for any action taken by it in good faith in accordance with
the instruction of such officers or taken in good faith in accordance with a
statement of any such officer of the Issuer with respect to any fact or matter
established by such statement.
8.5 Indemnification. The Issuer shall indemnify the Depositary and any
Depositary's Agents (other than agents affiliated with the Issuer) against, and
hold each of them harmless from, all claims, liabilities, losses, damages,
judgments, fines, settlements, costs and expenses (including all legal costs and
expenses relating thereto, including reasonable attorneys' fees) that may arise
out of (a) the acceptance by the Depositary or the Depositary's Agents of its
duties under this Agreement and (b) acts performed or omitted in respect of the
Agreement (1) by the Depositary or any Depositary's Agents (other than agents
affiliated with the Issuer) except for any liability due to negligence, bad
faith or intentional misconduct of the Depositary or any Depositary's Agent or
(2) by the Issuer or any of its agents.
8.6 Tax Matters. The Depositary shall have no duties, obligations or
liabilities with respect to (a) allocation of federal tax benefits related to
federal tax matters respecting the Issuer and Holders or (b) any income or other
tax reporting obligations imposed upon the Issuer or any Holder thereof by the
Internal Revenue Service or any other federal, state or local taxing authority.
8.7 Depositary Not Responsible For Validity of a Deposited Instrument. The
Depositary assumes no responsibility for the correctness of the description
prepared by the Issuer summarizing certain provisions of the Deposit Agreement
which appears in the Depositary Receipts. Notwithstanding any other provision
herein or set forth in the Depositary Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or sufficiency of
any stock certificates or other instruments representing any of the Securities
at any time deposited with the Depositary hereunder or of the Securities
evidenced thereby, as to the validity or sufficiency of this Agreement, as to
the value or condition of the Securities, as to any right, title
- 19 -
or interest of the Holders as to any right, title or interest of the Record
Holders of the Depositary Receipts to the Securities. The Depositary shall not
be accountable for the use or application by the Issuer of Depositary Receipts
or proceeds of either thereof.
ARTICLE IX
Charges; Fees; Expenses
9.1 In General. The charges, fees or reimbursement for services provided
hereunder are set forth in a separate agreement of the Depositary and the
Issuer.
9.2 Responsibility for Expenses and Charges. The Issuer shall be
responsible for payment of all charges, fees and reasonable expenses of
Depositary, including reasonable fees and expenses of its counsel, other than
such as are expressly provided by this Agreement to be paid by Holders or by
holders and transferees of the Depositary Receipts.
9.3 Governmental Charges. If any tax or other governmental charge becomes
payable with respect to the Securities, or a Depositary Receipt or a Depositary
Unit evidenced thereby, or with respect to deposit, transfer of any of the
foregoing, such tax or governmental charge shall be payable by the holder of the
Receipt or the transferee in the case of a transfer. Transfer of a Depositary
Receipt may be refused until such payment is made, and any cash or other
distribution may be withheld and be applied to payment of such tax or other
governmental charge, the holder or the transferee remaining liable for any
deficiency. In the event the Depositary is required to pay any such charge or
expense, the Issuer shall reimburse the Depositary for payment thereof upon the
request of the Depositary.
9.4 Special Charges. If at the election of an owner of Depositary Units or
the holder or transferee of a Depositary Receipt, any delivery or communication
from the Depositary is by telegram or telex or similar record telecommunication
mode, or the Depositary incurs any charge or expense for which it is not
otherwise liable under this Agreement, the owner, holder or transferee, as the
case may be, shall be liable for such charge or expense. In the event the
Depositary is required to pay any such charge or expense, the Issuer shall
reimburse the Depositary for payment thereof upon the request of the Depositary.
9.5 Notice Requirement. The Depositary shall give notice of the imposition
of any charge or fee, other than the
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charges described in Sections 9.3 and 9.4, upon holders or transferees of
Depositary Receipts, or any change therein, to any securities exchange upon
which Depositary Units or Receipts are listed or, in the absence of such
listing, by publication in a newspaper of general circulation in the Borough of
Manhattan, New York, New York, and shall also give notice thereof in writing to
all Record Holders of Receipts. The imposition of or a change in any such charge
or fee shall not become effective until ninety (90) days after the date of such
notice, unless it becomes effective in the form of an amendment pursuant to
Section 10.2.
ARTICLE X
Resignation; Amendment
10.1 Resignation and Removal of Depositary; Appointment of Successor
Depositary. (a) The Depositary may at any time resign as Depositary under this
Agreement by written notice of its election to do so delivered to the Issuer,
such resignation to take effect thirty (30) days after the date of such
notification or upon the earlier appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
(b) If the Depositary resigns, the Issuer shall, within thirty (30)
days after the delivery of the notice of resignation, appoint a successor
Depositary, which shall be a bank or trust company having a combined capital and
surplus of at least $50,000,000. If within thirty (30) days after the delivery
of the notice of resignation of the Depositary, no successor Depositary has been
appointed, the Issuer shall act as the Depositary until such time as the Issuer
appoints a successor Depositary. Any successor Depositary shall execute and
deliver to its predecessor and to the Issuer an instrument in writing accepting
its appointment, and thereupon such successor Depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor, upon payment of all sums due it
and upon the written request of the Issuer, shall execute and deliver an
instrument transferring to the successor Depositary all rights and powers of the
predecessor under this Agreement, shall duly transfer all Securities on deposit
to the successor Depositary, and shall deliver to the successor Depositary a
list of the Record Holders of all outstanding Depositary Receipts. Any successor
Depositary shall promptly mail notice of its appointment to the Record Holders
of Depositary Receipts.
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(c) Any corporation into or with which the Depositary may be merged
or consolidated shall be the successor of the Depositary without the execution
or filing of any document or any further act.
10.2 Amendment. (a) Any provision of this Agreement, including the form of
Depositary Receipt, and the Transfer Application therefor, may at any time and
from time to time be amended only by a written agreement among the Issuer, each
Record Holder and the Depositary.
(b) Upon the Issuer's request or as may be required by the rules or
regulations of any securities exchange upon which any Depositary Units or
Receipts are listed, the Depositary shall, at the request and the expense of the
Issuer, give notice of any material amendment of this Agreement to each
securities exchange upon which Depositary Units or Receipts are listed or, in
the absence of such listing, by publication in newspapers of general circulation
in the Borough of Manhattan, New York, New York, and shall also give notice
thereof in writing to all Record Holders of Depositary Receipts. In the
discretion of the Depositary, the text or substance of any amendment may be
incorporated in the Depositary Receipts issued after its adoption.
(c) Every Record Holder of a Depositary Receipt at the time any
amendment of this Agreement becomes effective shall be deemed, by continuing to
hold the Receipt, to consent and agree to the amendment and to be bound by this
Agreement as amended thereby.
(d) Notwithstanding anything herein to the contrary, no amendment to
this Agreement shall override or supersede the terms and provisions of the
Indenture.
ARTICLE XI
General Provisions
11.1 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument. Copies of this Agreement shall be filed
with the Depositary and Depositary's Agents and shall be open to inspection
during business hours at the Corporate Office by any Record Holder of a
Depositary Receipt.
11.2 Exclusive Benefit of Parties. This Agreement is for the exclusive
benefit of the parties hereto, and their
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respective successors, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person.
11.3 Invalidity of Provisions. If any provision of this Agreement or of
the Depositary Receipts is or becomes invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall not be effected thereby.
11.4 Notices. (a) Any notice to be given any of the following parties to
this Agreement shall be deemed to have been duly given if personally delivered
or sent by mail or by telegram or telex confirmed by letter, addressed to the
party in the manner and at the address shown below, or at such address as the
party has specified in a notice given in accordance with this Section.
To the Issuer:
Xxxxx Cable Communications, Inc.
Four Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
To the Depositary:
Fleet National Bank
Corporate Trust Department
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
(b) Any notice to be given to any Record Holder of a Depositary
Receipt shall be deemed to have been duly given if personally delivered or sent
by mail or by telegram or telex confirmed by letter, addressed to him at his
address as it appears on the books of the Depositary, or if he has filed with
the Depositary a written request that notices intended for him be mailed to some
other address, at the address designated in such request.
(c) Delivery of a notice sent by mail or by telegraph or telex shall
be deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Issuer may, however, act upon any telegram or telex message received by it from
either of the others or from any holder of a Depositary Receipt.
- 23 -
11.5 Holders of Receipts to Be Parties. The holders of Depositary Receipts
from time to time shall be parties to this Agreement and shall be bound by all
of the terms and conditions hereof and of the Receipts by acceptance thereof.
11.6 Pronouns and Plurals. Whenever the context may require, any pronoun
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa.
11.7 Governing Law. This Agreement and the rights, duties, obligations and
immunities of the Depositary under this Agreement or in respect of the
Depositary Receipts, shall be governed by and construed in accordance with the
laws of the State of New York.
11.8 Captions. The headings of articles and sections in this Agreement and
the form of Depositary Receipt set forth in Exhibit A hereto have been inserted
for convenience only and are not to be regarded as a part of this Agreement or
of any Receipt or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipt. Unless otherwise specified,
references contained herein to Subsections, Sections or Articles shall be deemed
to apply to Subsections, Sections or Articles of this Agreement.
- 24 -
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above set forth.
XXXXX CABLE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
FLEET NATIONAL BANK, as Depositary
By: /s/ Xxxxxx X. Xxxx, XX
---------------------------------
Name: Xxxxxx X. Xxxx, XX
Title: Vice President
FLEET NATIONAL BANK, not in its
individual capacity, but solely as
Trustee under the Indenture
By: /s/ Xxxxxx X. Xxxx, XX
---------------------------------
Name: Xxxxxx X. Xxxx, XX
Title: Vice President
- 25 -
EXHIBIT A
TRANSFER OF FULL RIGHTS OF OWNERSHIP OF DEPOSITARY UNITS REPRESENTED BY
THIS RECEIPT MAY ONLY BE MADE TO PERSONS WHO EXECUTE A TRANSFER APPLICATION. SEE
PARAGRAPHS 3 AND 7 HEREOF AND THE TRANSFER APPLICATION ON THE REVERSE SIDE.
THE CLASS C COMMON STOCK OF XXXXX CABLE COMMUNICATIONS, INC. ("ISSUER"),
AN UNDIVIDED INTEREST IN WHICH IS REPRESENTED BY THIS RECEIPT, IS SUBJECT TO A
LIEN IN FAVOR OF FINOVA CAPITAL CORPORATION ("FINOVA")PURSUANT TO A PLEDGE
AGREEMENT DATED AS OF DECEMBER 18,1996 BY AND AMONG FINOVA, ISSUER AND CERTAIN
SHAREHOLDERS THEREOF. IN THE EVENT THAT FINOVA FORECLOSES ON SUCH LIEN, THE
DEPOSIT AGREEMENT PURSUANT TO WHICH THIS RECEIPT IS ISSUED SHALL TERMINATE AND
THE CLASS C COMMON STOCK SHALL NO LONGER BE SUBJECT THERETO OR HERETO.
DEPOSITARY RECEIPT
for
SECURITIES
issued by
XXXXX CABLE COMMUNICATIONS, INC.
(a Texas corporation)
This Receipt is Transferable in New York, New York,
Hartford, Connecticut or Boston, Massachusetts
No.
1. FLEET NATIONAL BANK, a national banking association, as Depositary
("Depositary"), hereby certifies that
____________________________________________________________ is the registered
owner of _______________________________________________ Depositary Units, which
represent a undivided _____________________ percent (____ %) interest in each of
(i) all of the issued and outstanding shares of class C common stock of Xxxxx
Cable communications, Inc., a Texas corporation (the "Issuer"), and (ii) the
Notes issued in an aggregate principal amount of $49,500,000, and any additional
notes issued as payment of interest thereon, pursuant to the Indenture dated as
of December 18, 1996 between the Issuer and Fleet National Bank, as Trustee,
that have been deposited under the Deposit Agreement hereinafter identified.
2. Receipts, Deposit Agreement. Depositary Receipts ("Receipts"), of which
this Receipt is one, are issued upon the terms and conditions set forth in a
Deposit Agreement dated as of December 18, 1996, as may be amended from time to
time in accordance with its terms ("Deposit Agreement"), between and among the
Issuer, and the Depositary, and each Holder (as defined therein). The Deposit
Agreement, copies of which are on file at the Depositary's Corporate Office,
sets forth the rights of holders of Receipts, each of whom becomes a party to
the Deposit Agreement by acceptance of a Receipt, and the rights and duties of
the Depositary in respect of the Depositary Units and all other property and
cash from time to time held under the Deposit Agreement. The statements made on
the face and the reverse of this Receipt prepared by the Issuer are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made.
3. Transfers, Split-Ups, Combinations. This Receipt is transferable on the
books of the Depositary or a transfer agent upon surrender of this Receipt by
the holder hereof, in person or by duly authorized attorney, to the Depositary
or a transfer agent at the Depositary's Corporate Office, or at such other
office or offices as the Depositary may designate, properly endorsed, or
accompanied by an instrument of transfer properly executed by the transferor and
accompanied by a Transfer Application in a form acceptable to the Depositary
("Transfer Application") properly executed by a transferee and upon such
transfer the Depositary or the transfer agent shall, directly or through an
agent, issue and deliver a Receipt to or upon the order of the Person entitled
thereto. This Receipt may be split into other Receipts, or combined with other
Receipts into one Receipt, evidencing the same aggregate number of Depositary
Units as the Receipt or Receipts surrendered.
4. Conditions to Signing and Delivery, Transfer, Etc. of Receipts. Before
the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt, the Depositary, any transfer agent or any of the
Depositary's Agents may require (a) payment of a sum sufficient for
reimbursement of any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to Securities being deposited),
(b) production of proof satisfactory to it as to the identity and genuineness of
any signature or as to the due authorization of the action, and (c) compliance
with such regulations, if any, as it may establish pursuant to the Deposit
Agreement. Any Person presenting Securities for deposit or any holder of this
Receipt may be required to file such information and to execute such
certificates as the Depositary may request.
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5. Suspension of Delivery, Transfer, Etc. The deposit of Securities or the
delivery of this Receipt against Depositary Units, may be suspended or the
registration of transfer, surrender or exchange of this Receipt may be refused
during any period when any register of owners of Depositary units is closed or
when such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Issuer at any time or from time to time because of
any requirement of law or of any securities exchange upon which Depositary Units
or this Receipt may be listed, government or governmental body or commission, or
under any provision of the Deposit Agreement.
6. Effect of Acceptance and Transfer of Receipts. A record holder of this
Receipt shall only have the authority to convey to a purchaser or other
transferee who does not execute and deliver a Transfer Application the right to
negotiate this Receipt to a purchaser or other transferee. By acceptance of this
Receipt, the transferee becomes a party to the Deposit Agreement, bound by the
terms and conditions of the Deposit Agreement and the Receipt and agrees that
his or its transferor's duty to provide the transferee with any requisite
documents which may be necessary to obtain registration of the transfer of the
security shall exclude any duty of the transferor with respect to the
requirement of the delivery of an executed Transfer Application.
7. Requirements of Execution. The holder of this Receipt shall not be
entitled to any benefits under the Deposit Agreement and this Receipt shall not
be valid or obligatory for any purpose unless the Receipt has been signed by and
on behalf of the Depositary by the manual signature of a duly authorized
employee; provided that such signature may be a facsimile if a Registrar has
been appointed and this Receipt is countersigned by the manual signature of a
duly authorized employee of the Registrar.
Dated: _______ FLEET NATIONAL BANK, as
Depositary, Transfer Agent and Registrar
By: _______________________________________
Authorized Signature
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF
THIS RECEIPT APPEAR ON THE REVERSE SIDE
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REVERSE SIDE
Further Conditions and Agreements
Forming Part of this Receipt
8. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge becomes payable with respect to this Receipt or with respect
to Depositary Units evidenced by the Receipt, such tax (including transfer
taxes, if any) or governmental charge shall be payable by the holder of this
Receipt. Transfer of this Receipt may be refused until such payment is made, and
any distribution may be withheld and be applied to payment of such tax or other
governmental charge, the holder of this Receipt remaining liable for any
deficiency.
9. Warranties by Holder. Every Person depositing Securities under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Person is, or is duly authorized to be acting for, a Holder as defined in the
Deposit Agreement and that the Person making such deposit is the owner thereof
or duly authorized by the owner thereof so to do.
10. Amendment. Any provision of the Deposit Agreement or of the form of
Receipt or Transfer Application may at any time be amended only by agreement
among the Issuer, each Record Holder and the Depositary. The holder of this
Receipt at the time any amendment so becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to the amendment, and to
be bound by the Deposit Agreement as amended thereby.
11. Charges of Depositary. The Issuer will pay all charges of the
Depositary, except for taxes and other governmental charges as are expressly
provided in the Deposit Agreement to be at the expense of Persons depositing
Securities.
12. Title to Receipts. This Receipt (and the Depositary Units evidenced by
this Receipt), when properly endorsed, or accompanied by an instrument of
transfer properly executed by the transferor and accompanied by a Transfer
Application properly executed by a transferee, is transferable in accordance
with the laws governing transfers of investment securities; provided, however,
that as a condition of this Receipt, and every successive holder hereof by
accepting transfer or holding this Receipt consents and agrees, that until this
Receipt is transferred on the books of the Depositary or any transfer agent, the
Depositary, any transfer agent and the Issuer may, notwithstanding any notice to
the contrary and notwithstanding any notation or other writing on this Receipt,
treat the Record Holder hereof at such time as the absolute owner hereof for all
purposes.
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13. Distributions. Whenever the Depositary receives from the Issuer any
cash distributable to Record Holders of Depositary Units, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Record Holders of Receipts on the record date fixed by the Issuer for
purposes of such distribution in proportion to the number of Depositary Units
registered in such Record Holders' names; provided, however, that the amounts
distributed may be reduced by any amount required to be withheld by the Issuer
or the Depositary on account of taxes.
14. Reports. The Depositary will make available for inspection by Record
Holders of Receipts at its Corporate Office and at such other office or offices
as it may deem advisable, any report, financial statement, or communication
received from the Issuer that is both (a) received by the Depositary in its
capacity as the depositary of Securities and (b) made generally available to the
Record Holders of Depositary Units. The Depositary will also send to Record
Holders of Receipts copies of reports, financial statements and communications
to the extent provided in the Deposit Agreement when furnished by the Issuer.
15. Transfer Books. The Depositary will keep books for the transfer of
Receipts, which at all reasonable times will be open for inspection by the
Record Holders of Receipts provided that such inspection shall not be for the
purpose of communicating with Record Holders of Receipts in the interest of a
business or object other than the business of the Issuer or a matter related to
the Deposit Agreement or the Receipts.
16. Liability of Depositary, Depositary's Agents or the Issuer. Neither
the Depositary nor any agent of the Depositary nor the Issuer shall incur any
liability to any holder of any Receipt if, by reason of any provision of any
present or future law of any governmental authority or, in the case of the
Depositary or any agent of the Depositary, or by reason of any act of God or war
or other circumstance beyond its control, the Depositary, any agent of the
Depositary or the Issuer is prevented or forbidden from doing or performing any
act or thing required by the terms of the Deposit Agreement to be done or
performed; nor shall the Depositary, any agent of the Depositary or the Issuer
incur any liability to any holder of a Receipt by reason of any non-performance
or delay, caused as aforesaid, in performance of any act or thing required by
the terms of the Deposit Agreement to be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided in the Deposit
Agreement.
17. Immunities of Depositary, Depositary's Agents and Issuer. Neither the
Depositary nor any agent of the Depositary nor the Issuer (a) assumes any
obligation or shall be subject to any liability under the Deposit Agreement to
holders of the Receipts
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other than that each of them agrees to use its best judgment and good faith in
the performance of such duties as are specifically set forth in the Deposit
Agreement, or (b) will be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect to Securities, Depositary Units
or Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required, or (c) will be liable for any action or non-action by
it in reasonable reliance upon the advice of or information from legal counsel,
accountants, any Person presenting Securities for deposit, any holder of a
Receipt, or any other Person believed by it reasonably and in good faith to be
competent to give such advice or information. The Depositary, any Depositary's
Agent, and the Issuer may rely and shall be protected in acting upon any written
notice, request, direction or other document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person or Persons.
18. Indemnification. The Issuer will indemnify the Depositary and its
agents (other than agents of the Issuer) against, and hold them harmless from,
all claims, liabilities, losses, damages, judgments, fines, settlements, costs
and expenses (including all legal costs and expenses relating thereto, including
reasonable attorneys fees) that may arise out of (a) the acceptance by the
Depositary or any of its agents of its duties under the Deposit Agreement and
(b) acts performed or omitted in respect of the Deposit Agreement (i) by the
Depositary or any of its agents (other than agents affiliated with the Issuer),
except for any liability arising out of negligence, bad faith or intentional
misconduct of the Depositary or any of its agents or (ii) by the Issuer or any
of its agents.
19. Resignation of Depositary. The Depositary may at any time resign by
written notice of its election to do so delivered to the Issuer, such
resignation to take effect 30 days after the date of such notification or upon
the earlier appointment of a successor Depositary and its acceptance of such
appointment, as provided in the Deposit Agreement.
20. Governing Law. The Deposit Agreement and the rights, duties,
obligations and immunities of the Depositary hereunder shall be governed by and
construed in accordance with the laws of the State of New York without regard to
that State's principles of conflicts of law.
21. Defined Terms. Any term not expressly defined herein shall have the
meaning ascribed to it in the Deposit Agreement.
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DEPOSITARY NOT RESPONSIBLE FOR VALIDITY OF ANY DEPOSITED INSTRUMENT. The
Depositary assumes no responsibility for the correctness of the foregoing
descriptions prepared by the Issuer summarizing certain provisions of the
Deposit Agreement and makes no warranties or representations as to the validity,
genuineness or sufficiency of any certificate or other instrument deposited with
the Depositary or of the Securities evidenced thereby, as to the value or
condition of such Securities, as to any right, title or interest of the record
holders of the such instruments to the Securities or as to any right, title or
interest of the record holders of the Depositary Receipts to the Securities.
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN
ACT-- _______ Custodian ______
(Cust) (Minor)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants in common Minors Act ______
(State)
Additional abbreviations may also be used, though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___________________________________
_________________________________________ _______________________________
Please insert Social Security or other Please print or
identifying number of Transferee typewrite name and
address of Transferee
__________________________________________ Depositary Units represented by the
within Receipt, and irrevocably constitutes and appoints
__________________________________ attorney, to transfer the same on the books
of the within-named Depositary, with full power of substitution in the premises.
Dated: __________________________________ Signature ___________________________
Signature Guaranteed
_________________________________________
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Note: The signature to any endorsement hereon must correspond with the
name as written upon the face of the Receipt, in every particular, without
alteration or enlargement or any change whatever. If the endorsement is executed
by an attorney, executor, administrator, trustee or guardian, the person
executing the endorsement must give his full title in such capacity, and proper
evidence of authority to act in such capacity, if not on file with the
Depositary, must be forwarded with this Receipt. The signature must be
guaranteed by an authorized employee of a bank, trust company or member of a
National Securities Exchange.
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No assignment of the Depositary Units evidenced by a Depositary Receipt
will be registered on the books of the Depositary or of Xxxxx Cable
Communications, Inc., a Texas corporation unless an Application for Transfer of
Depositary Units has been executed and delivered by an assignee on the form of
application set forth below. An assignor of a Depositary Receipt shall have no
duty to an assignee with respect to the requirement of the assignee to deliver
an executed transfer application in order for an assignee to obtain registration
of transfer of the Depositary Receipt.
APPLICATION FOR TRANSFER OF DEPOSITARY UNITS
The undersigned ("Applicant") hereby applies for transfer to the name of
the Applicant of the Depositary Units evidenced by a Depositary Receipt.
The Applicant (i) agrees to be bound by the terms and conditions of the
Deposit Agreement and the Depositary Receipt, and (ii) represents and warrants
that the Applicant has all right, power and authority necessary to enter into
the Deposit Agreement.
Date: _________________________________ ______________________________________
Signature
_______________________________________ ______________________________________
Social Security or other Residence Address
identifying number
_______________________________________
Purchase Price
(including commissions, if any)
Type of Entity (check one):
_____________Individual ___________Issuer __________Corporation
_____________Trust ___________________ Other (specify): ________________________
If the Applicant is a broker, dealer, bank, trust company, clearing
corporation, other nominee holder or an agent of any of the foregoing, and is
holding for the account of any other person, this application should be
completed by an officer thereof, or, in the case of a broker or dealer, by a
registered representative who is a member of a registered national securities
exchange or a member of the National Association of Securities Dealers, Inc.,
or, in the case of any other nominee holder, a person performing a
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similar function. If the Applicant is a broker, dealer, bank, trust company,
clearing corporation, other nominee holder or an agent of any of the foregoing,
the above certification as to any person for whom the Applicant will hold the
Depositary Unit shall be made to the best of the Applicant's knowledge.
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