Exhibit 4.2
EXECUTION COPY
--------------------------------------------------------------------------------
CABLEVISION SYSTEMS CORPORATION,
Issuer,
to
THE BANK OF NEW YORK,
Trustee
-----------------------
Indenture
Dated as of August 15, 1997
-----------------------
$400,000,000
8 1/8% Senior Debentures due 2009
8 1/8% Series B Senior Debentures due 2009
--------------------------------------------------------------------------------
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 15, 1997
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) .................................... 608
(a)(2) .................................... 608
(b) .................................... 607, 609
Section 311(a) .................................... 612
(b) .................................... 612
Section 312(a) .................................... 607
(b) .................................... 607
(c) .................................... 701
Section 313 .................................... 702
Section 314(a) .................................... 703
(a)(4) .................................... 1013
(c)(1) .................................... 103
(c)(2) .................................... 103
(e) .................................... 103
Section 315(b) .................................... 601
Section 316(a)(last
sentence) .................................... 101 ("Outstanding")
(a)(1)(A) .................................... 502, 512
(a)(1)(B) .................................... 513
(b) .................................... 508
(c) .................................... 105(d)
Section 317(a)(1) .................................... 503
(a)(2) .................................... 504
(b) .................................... 1003
Section 318(a) .................................... 108
--------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
TABLE OF CONTENT
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions................................... 1
Acquired Indebtedness............................... 2
Affiliate........................................... 2
Agent Members....................................... 2
Annualized Operating Cash Flow...................... 2
Average Life........................................ 2
Bank Credit Agreement............................... 2
Banks............................................... 3
Board of Directors.................................. 3
Board Resolution.................................... 3
Book-Entry Security................................. 3
Business Day........................................ 3
Capital Stock....................................... 3
Capitalized Lease Obligation........................ 3
Cash Flow Ratio..................................... 3
CNYC Agreement...................................... 3
Commission.......................................... 4
Common Stock........................................ 4
Company............................................. 4
Company Request or Company Order.................... 4
Consolidated Net Tangible Assets.................... 4
Corporate Trust Office.............................. 4
corporation......................................... 4
Cumulative Cash Flow Credit......................... 4
Cumulative Interest Expense......................... 5
Debt................................................ 5
Default............................................. 6
Depository.......................................... 6
Disqualified Stock.................................. 6
Event of Default.................................... 6
Exchange Act........................................ 6
Exchange Offer...................................... 6
Exchange Offer Registration Statement............... 6
Exchange Securities................................. 6
---------------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
ii Page
generally accepted accounting principles............ 6
Global Security..................................... 7
guarantee........................................... 7
Holder.............................................. 7
Indebtedness........................................ 7
Indenture........................................... 7
Initial Purchasers.................................. 8
Initial Securities.................................. 8
Interest Payment Date............................... 8
Interest Swap Obligations........................... 8
Investment.......................................... 8
Lease............................................... 8
Letter of Credit.................................... 8
Lien................................................ 8
Mandatorily Redeemable Preferred Stock.............. 9
Maturity............................................ 9
Officers' Certificate............................... 9
Operating Cash Flow................................. 9
Opinion of Counsel.................................. 9
Outstanding......................................... 10
Paying Agent........................................ 10
Permitted Liens..................................... 10
Person.............................................. 13
Physical Security................................... 13
Predecessor Security................................ 13
Preferred Stock..................................... 13
Qualified Institutional Buyer or QIB................ 13
Receivables and Related Assets...................... 13
Refinancing Indebtedness............................ 13
Registered Securities............................... 14
Registration Rights Agreement....................... 14
Regular Record Date................................. 14
Regulation S Global Security........................ 14
Responsible Officer................................. 14
Restricted Payment.................................. 14
Restricted Security................................. 15
Restricted Subsidiary............................... 15
Rule 144A Global Security........................... 16
Securities Act...................................... 16
Securities Issue Date............................... 16
Securitization Subsidiary........................... 16
Security" and "Securities........................... 16
Security Register and Security Registrar............ 16
Senior Indebtedness................................. 16
iii Page
Shelf Registration Statement............................... 17
Special Record Date........................................ 17
Stated Maturity............................................ 17
Stock Payment.............................................. 17
subsidiary................................................. 17
Subsidiary................................................. 17
Trust Indenture Act........................................ 17
Trustee.................................................... 17
Unrestricted Subsidiary.................................... 18
Voting Stock............................................... 18
Section 102. Other Definitions.................................... 18
Section 103. Compliance Certificates and Opinions................. 18
Section 104. Form of Documents Delivered to Trustee............... 19
Section 105. Acts of Holders...................................... 20
Section 106. Notices, Etc. to Trustee and Company................. 21
Section 107. Notice to Holders; Waiver............................ 21
Section 108. Conflict of Any Provision of Indenture with Trust
Indenture Act....................................... 22
Section 109. Effect of Headings and Table of Contents............. 22
Section 110. Successors and Assigns............................... 22
Section 111. Separability Clause.................................. 22
Section 112. Benefits of Indenture................................ 22
Section 113. Governing Law........................................ 23
Section 114. Legal Holidays....................................... 23
Section 115. No Recourse Against Others........................... 23
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally; Incorporation of Form in Indenture.. 23
Section 202. Form of Face of Security............................. 24
Section 203. Form of Reverse of Security.......................... 26
Section 204. Form of Trustee's Certificate of Authentication...... 30
Section 205. Form of Legend on Restricted Securities.............. 31
Section 206. Form of Legend for Book-Entry Securities............. 32
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms...................................... 33
Section 302. Denominations........................................ 33
Section 303. Execution, Authentication, Delivery and Dating....... 34
Section 304. Temporary Securities................................. 35
iv Page
Section 305. Registration, Registration of Transfer and Exchange..... 36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 37
Section 307. Payment of Interest; Interest Rights Preserved.......... 38
Section 308. Persons Deemed Owners................................... 39
Section 309. Cancellation............................................ 39
Section 310. Computation of Interest................................. 40
Section 311. Registration Rights of Holders of Initial Securities.... 40
Section 312. CUSIP Numbers........................................... 40
Section 313. Book-Entry Provisions for Global Securities............. 40
Section 314. Special Transfer Provisions............................. 42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture................. 45
Section 402. Application of Trust Money.............................. 46
ARTICLE FIVE
REMEDIES
Section 501. Events of Default....................................... 46
Section 502. Acceleration of Maturity; Rescission.................... 48
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................ 49
Section 504. Trustee May File Proofs of Claim........................ 50
Section 505. Trustee May Enforce Claims Without Possession of
Securities............................................. 51
Section 506. Application of Money Collected.......................... 51
Section 507. Limitation on Suits..................................... 51
Section 508. Unconditional Right of Holders to Receive Principal
and Interest........................................... 52
Section 509. Restoration of Rights and Remedies...................... 52
Section 510. Rights and Remedies Cumulative.......................... 53
Section 511. Delay or Omission Not Waiver............................ 53
Section 512. Control by Holders...................................... 53
Section 513. Waiver of Past Defaults................................. 53
Section 514. Undertaking for Costs................................... 54
Section 515. Waiver of Stay, Extension or Usury Laws................. 54
v Page
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.......................................... 55
Section 602. Certain Rights of Trustee................................... 55
Section 603. Not Responsible for Recitals or Issuance of Securities...... 56
Section 604. May Hold Securities......................................... 57
Section 605. Money Held in Trust......................................... 57
Section 606. Compensation and Reimbursement.............................. 57
Section 607. Conflicting Interests....................................... 58
Section 608. Corporate Trustee Required; Eligibility..................... 58
Section 609. Resignation and Removal; Appointment of Successor........... 58
Section 610. Acceptance of Appointment by Successor...................... 60
Section 611. Merger, Conversion, Consolidation or Succession to
Business................................................... 60
Section 612. Preferential Collection of Claims Against Company........... 61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders................ 61
Section 702. Reports by Trustee.......................................... 61
Section 703. Reports by Company.......................................... 61
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms........ 62
Section 802. Successor Substituted....................................... 63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.......... 63
Section 902. Supplemental Indentures with Consent of Holders............. 64
Section 903. Execution of Supplemental Indentures........................ 65
Section 904. Effect of Supplemental Indentures........................... 65
Section 905. Conformity with Trust Indenture Act......................... 65
Section 906. Reference in Securities to Supplemental Indentures.......... 66
ARTICLE TEN
vi Page
COVENANTS
Section 1001. Payment of Principal and Interest............................ 66
Section 1002. Maintenance of Office or Agency.............................. 66
Section 1003. Money for Security Payments to Be Held in Trust.............. 67
Section 1004. Corporate Existence.......................................... 68
Section 1005. Payment of Taxes and Other Claims............................ 68
Section 1006. Maintenance of Properties.................................... 68
Section 1007. Limitation on Indebtedness................................... 69
Section 1008. Limitation on Liens.......................................... 69
Section 1009. Limitation on Restricted Payments............................ 69
Section 1010. Limitation on Investments in Unrestricted Subsidiaries and
Affiliates........................................................... 71
Section 1011. Transactions with Affiliates................................. 71
Section 1012. Provision of Financial Statements............................ 71
Section 1013. Statement as to Compliance................................... 72
Section 1014. Waiver of Certain Covenants.................................. 72
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. No Right of Redemption....................................... 73
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Option to Effect Defeasance or Covenant Defeasance........... 73
Section 1202. Defeasance and Discharge..................................... 73
Section 1203. Covenant Defeasance.......................................... 74
Section 1204. Conditions to Defeasance or Covenant Defeasance.............. 74
Section 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions............................. 76
Section 1206. Reinstatement................................................ 77
TESTIMONIUM................................................................. 73
SIGNATURES AND SEALS........................................................ 73
ACKNOWLEDGMENTS............................................................. 73
vii Page
EXHIBIT A List of Restricted Subsidiaries
EXHIBIT B Form of Registration Rights Agreement
INDENTURE dated as of August 15, 1997 between Cablevision Systems
Corporation, a Delaware corporation (hereinafter called the "Company"), and
The Bank of New York, a state banking corporation duly incorporated and
existing under the laws of the State of New York, trustee (hereinafter called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
8 1/8% Senior Debentures due 2009 (hereinafter called the "Initial
Securities") and its 8 1/8% Series B Senior Debentures due 2009 (the "Exchange
Securities," and together with the Initial Securities, the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture;
Upon the issuance of the Exchange Securities, if any, or the
effectiveness of the Exchange Offer Registration Statement (as defined
herein) or, under certain circumstances, the effectiveness of the Shelf
Registration Statement (as defined herein), this Indenture will be subject
to, and shall be governed by, the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall to the extent applicable
be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
2
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States as of the date
hereof; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing
at the time such Person is merged with or into the Company or a Subsidiary or
becomes a Subsidiary or (b) assumed in connection with the acquisition of
assets from such Person.
"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 the purposes of this
definition, "control" when used with respect to any specified 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 Members" shall have the meaning set forth in Section 313.
"Annualized Operating Cash Flow" means, for any period of three
complete consecutive calendar months, an amount equal to Operating Cash Flow
for such period multiplied by four.
"Average Life" means, at any date of determination with respect to
any debt security, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date of determination to the
dates of each successive scheduled principal payment of such debt security
and (b) the amount of such principal payment by (ii) the sum of all such
principal payments.
"Bank Credit Agreement" means the Fifth Amended and Restated Credit
Agreement, dated as of September 5, 1996, among the Company, the Restricted
Subsidiaries party thereto, the Banks party thereto, Toronto Dominion
(Texas), Inc. as agent for the Banks, and Bank of Montreal, Chicago Branch,
The Bank of New York, The Bank of Nova Scotia, The Canadian Imperial Bank of
Commerce and NationsBank of Texas, N.A., as co-agents for the Banks, as in
effect on the date hereof and as such agreement may be amended or replaced
from time to time.
3
"Banks" means the lenders from time to time who are parties to the
Bank Credit Agreement.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification and delivered to the Trustee.
"Book-Entry Security" means a Security represented by a Global
Security and registered in the name of the nominee of the Depository.
"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, regulation or executive order to
close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated)
of such Person's capital stock whether now Outstanding or issued after the
date of this Indenture, including, without limitation, all Common Stock,
Preferred Stock and Disqualified Stock.
"Capitalized Lease Obligation" means any obligation of a Person to
pay rent or other amounts under a lease with respect to any property (whether
real, personal or mixed) acquired or leased by such Person and used in its
business that is required to be accounted for as a liability on the balance
sheet of such Person in accordance with generally accepted accounting
principles and the amount of such Capitalized Lease Obligation shall be the
amount so required to be accounted for as a liability.
"Cash Flow Ratio" means, as at any date, the ratio of (i) the sum of
the aggregate outstanding principal amount of all Indebtedness of the Company
and the Restricted Subsidiaries determined on a consolidated basis but
excluding all Interest Swap Obligations entered into by the Company or any
Restricted Subsidiary and one of the Banks outstanding on such date plus (but
without duplication of Indebtedness supported by Letters of Credit) the
aggregate undrawn face amount of all Letters of Credit outstanding on such
date to (ii) Annualized Operating Cash Flow determined as at the last day of
the most recent month for which financial information is available.
"CNYC Agreement" means the Purchase and Reorganization Agreement,
dated as of December 20, 1991, between the Company and Xxxxxxx X. Xxxxx, as
amended as of March 28, 1992 and as further amended from time to time.
4
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests and participations (however designated and whether voting
or non-voting) in such Person's common equity, whether now Outstanding or
issued after the date of this Indenture, and includes, without limitation,
all series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person. To the extent necessary to
comply with the requirements of the provisions of Trust Indenture Act
Sections 310 through 317 as they are applicable to the Company, the term
"Company" shall include any other obligor with respect to the Securities for
the purposes of complying with such provisions.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company (i) by its Chairman, a Vice Chairman,
its President or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the
Trustee; provided, however, that such written request or order may be signed
by any two of the officers or directors listed in clause (i) above in lieu of
being signed by one of such officers or directors listed in such clause (i)
and one of the officers listed in clause (ii) above.
"Consolidated Net Tangible Assets" of any Person means, as of any
date, (a) all amounts that would be shown as assets on a consolidated balance
sheet of such Person and its Restricted Subsidiaries prepared in accordance
with generally accepted accounting principles, less (b) the amount thereof
constituting goodwill and other intangible assets as calculated in accordance
with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"Cumulative Cash Flow Credit" means the sum of
5
(a) cumulative Operating Cash Flow during the period commencing on
July 1, 1988 and ending on the last day of the most recent month preceding
the date of the proposed Restricted Payment for which financial information
is available or, if cumulative Operating Cash Flow for such period is
negative, minus the amount by which cumulative Operating Cash Flow is less
than zero, plus
(b) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, plus
(c) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, upon the
conversion of, or exchange for, Indebtedness of the Company or any
Restricted Subsidiary or from the exercise of any options, warrants or
other rights to acquire Capital Stock of the Company.
For purposes of this definition, the net proceeds in property other than cash
received by the Company as contemplated by clauses (b) and (c) above shall be
valued at the fair market value of such property (as determined by the Board
of Directors, whose good faith determination shall be conclusive) at the date
of receipt by the Company.
"Cumulative Interest Expense" means, for the period commencing on
July 1, 1988 and ending on the last day of the most recent month preceding
the proposed Restricted Payment for which financial information is available,
the aggregate of the interest expense of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with generally accepted accounting principles, including interest
expense attributable to Capitalized Lease Obligations.
"Debt" with respect to any Person means, without duplication, any
liability, whether or not contingent, (i) in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), but excluding
reimbursement obligations under any surety bond, (ii) representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to Capitalized Lease Obligations), except any such balance that
constitutes a trade payable, (iii) under Interest Swap Agreements (as defined
in the Bank Credit Agreement) entered into pursuant to the Bank Credit
Agreement, (iv) under any other agreement related to the fixing of interest
rates on any Indebtedness, such as an interest swap, cap or collar agreement
(if and to the extent any of the foregoing liabilities would appear as a
liability upon a balance sheet of such Person prepared on a consolidated
basis in accordance with generally accepted accounting principles) or (v)
guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not the guarantee would appear
on such balance sheet). "Debt" does not include (i) Disqualified Stock, (ii)
any liability for
6
federal, state or other taxes owed or owing by such person or (iii) any
accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Book-Entry Securities, The Depository Trust Company or
another Person designated as Depository by the Company, which must be a
clearing agency registered under the Exchange Act.
"Disqualified Stock" means any Capital Stock of the Company or any
Restricted Subsidiary which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date of the
Securities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to the Holders of
the Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that (i) such
Exchange Securities shall not contain terms with respect to transfer
restrictions and shall be registered under the Securities Act, and (ii)
certain provisions relating to an increase in the stated rate of interest
thereon shall be eliminated) that are issued and exchanged for the Initial
Securities in accordance with the Exchange Offer, as provided for in the
Registration Rights Agreement and this Indenture.
"generally accepted accounting principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied,
which are in effect as of the date hereof.
7
"Global Security" means one or more Securities evidencing all or a
part of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 303 and bearing the legend prescribed
in Section 206 and, in the case of a Restricted Security, the legend
prescribed in Section 205.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation or (ii) an agreement, direct or indirect,
contingent or otherwise, providing assurance of the payment or performance
(or payment of damages in the event of non-performance) of any part or all of
such obligation, including, without limiting the foregoing, the payment of
amounts drawn down by letters of credit. Notwithstanding anything herein to
the contrary, a guarantee shall not include any agreement solely because such
agreement creates a Lien on the assets of any Person. The amount of a
guarantee shall be deemed to be the maximum amount of the obligation
guaranteed for which the guarantor could be held liable under such guarantee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" with respect to any Person, means the Debt of such
Person; provided, however, that, with respect to the Company, the "Minimum
Payment" or the "Preferred Payment", as defined in and pursuant to the CNYC
Agreement, payable by a Subsidiary and guaranteed by the Company as a result
of the acquisition of Cablevision of NYC, shall not be deemed to be
"Indebtedness" so long as the Company and such Subsidiary are permitted to
make such payment in one or more classes of the Company's Capital Stock
(other than Disqualified Stock) pursuant to the terms of the CNYC Agreement
and the Company and the Restricted Subsidiaries are prohibited from making
such payment in cash, debt securities, Disqualified Stock or any combination
thereof pursuant to the terms of any mortgage, indenture, credit agreement or
other instrument that secures or evidences Indebtedness for money borrowed or
guaranteed by the Company or a Restricted Subsidiary in an aggregate amount
of $10,000,000 or more; provided that, for purposes of the definition of
"Indebtedness" (including the term "Debt" to the extent incorporated in such
definition) and for purposes of the definition of Event of Default, the term
"guarantee" shall not be interpreted to extend to a guarantee under which
recourse is limited to the Capital Stock of an entity that is not a
Restricted Subsidiary.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
8
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated.
"Initial Securities" has the meaning specified in the recitals to
this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Securities.
"Interest Swap Obligations" means, with respect to any Person, the
obligations of such Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive from time
to time periodic payments calculated by applying either a floating or a fixed
rate of interest on a stated notional amount in exchange for periodic
payments made by such Person calculated by applying a fixed or a floating
rate of interest on the same notional amount.
"Investment" means any advance, loan, account receivable (other than
an account receivable arising in the ordinary course of business) or other
extension of credit (excluding, however, accrued and unpaid interest in
respect of any advance, loan or other extension of credit) or any capital
contribution to (by means of transfers of property to others, or payments for
property or services for the account or use of others, or otherwise), any
purchase or ownership of any stocks, bonds, notes, debentures or other
securities (including, without limitation, any interests in any partnership,
joint venture or joint adventure) of, or any bank accounts with or guarantee
of any Indebtedness or other obligations of, any Unrestricted Subsidiary or
Affiliate that is not a Subsidiary; provided that (i) the term "Investment"
shall not include any transaction that would otherwise constitute an
Investment of the Company or a Subsidiary to the extent that the
consideration provided by the Company or such Subsidiary in connection
therewith shall consist of of the Company (other than Disqualified Stock)
and (ii) the term "guarantee" shall not be interpreted to extend to a
guarantee under which recourse is limited to the Capital Stock of an entity
that is not a Restricted Subsidiary.
"Lease" means any capital lease, operating lease, equipment lease,
real property lease or other lease.
"Letter of Credit" means any letter of credit executed by a bank in
favor of the Company as beneficiary.
"Lien" means any lien, security interest, charge or encumbrance of
any kind (including any conditional sale or other title retention agreement,
any lease in the nature of a security interest and any agreement to give any
security interest). A Person shall be deemed to own subject to a Lien any
property which such Person has acquired or holds subject to the
9
interest of a vendor or lessor under a conditional sale agreement, capital
lease or other title retention agreement.
"Mandatorily Redeemable Preferred Stock" means the Company's Series
H Redeemable Exchangeable Preferred Stock, Series M Redeemable Exchangeable
Preferred Stock and any series of preferred stock of the Company issued in
exchange for, or the proceeds of which are used to repurchase, redeem,
defease or otherwise acquire, all or any portion of the Series H Redeemable
Exchangeable Preferred Stock, Series M Redeemable Exchangeable Preferred
Stock or any other Mandatorily Redeemable Preferred Stock.
"Maturity" when used with respect to any Security means the date on
which the principal of and interest on such Security becomes due and payable
as therein or herein provided whether at the Stated Maturity, by declaration
of acceleration or otherwise.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President or the Treasurer
of the Company and (ii) the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee; provided, however, that such
certificate may be signed by two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in clause (ii) above.
"Operating Cash Flow" means, for any period, the sum of the
following for the Company and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with generally accepted
accounting principles (except for the amortization of deferred installation
income which shall be excluded from the calculation of Operating Cash Flow
for all purposes of this Indenture): (i) aggregate operating revenues minus
(ii) aggregate operating expenses (including technical, programming, sales,
selling, general and administrative expenses and salaries and other
compensation, net of amounts allocated to Affiliates, paid to any general
partner, director, officer or employee of the Company or any Restricted
Subsidiary, but excluding interest, depreciation and amortization and the
amount of non-cash compensation in respect of the Company's employee
incentive stock programs for such period (not to exceed in the aggregate for
any calendar year 7% of the Operating Cash Flow for the previous calendar
year) and, to the extent otherwise included in operating expenses, any losses
resulting from a writeoff or writedown of Investments by the Company or any
Restricted Subsidiary in Affiliates). For purposes of determining Operating
Cash Flow, there shall be excluded all management fees until actually paid to
the Company or any Restricted Subsidiary in cash.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
10
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or purchase
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities;
(c) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Twelve; and
(d) Securities paid pursuant to Section 306, Securities in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or
any other obligor upon the Securities, or any Affiliate of the Company, or
such other obligor, shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, direction, consent or waiver, only Securities
which the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permitted Liens" means the following types of Liens:
(a) Liens existing on the date of this Indenture;
11
(b) Liens on shares of the Capital Stock of an entity that is not a
Restricted Subsidiary, which Liens solely secure a guarantee by the Company
or a Restricted Subsidiary, or both, of Indebtedness of such entity;
(c) Liens on Receivables and Related Assets (and proceeds thereof)
securing only Indebtedness otherwise permitted to be incurred by a
Securitization Subsidiary;
(d) Liens on shares of the Capital Stock of a Subsidiary securing
Indebtedness under the Bank Credit Agreement or any renewal or replacement
of the Bank Credit Agreement;
(e) Liens granted in favor of the Company or any Restricted
Subsidiary;
(f) Liens securing the Securities;
(g) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or a Restricted Subsidiary; provided that such Lien does not
extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness;
(h) Liens securing Interest Swap Obligations or "margin stock", as
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System;
(i) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceedings;
(j) Liens for taxes, assessments, government charges or claims not yet
due or that are being contested in good faith by appropriate proceedings;
(k) zoning restrictions, easements, rights-of-way, restrictions and
other similar charges or encumbrances or minor defects in title not
interfering in any material respect with the business of the Company or any
of its Restricted Subsidiaries;
(l) Liens arising by reason of any judgment, decree or order of any
court, arbitral tribunal or similar entity so long as any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not
12
have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;
(m) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security or similar legislation;
(n) Liens securing the performance of bids, tenders, Leases,
contracts, franchises, public or statutory obligations, surety, stay or
appeal bonds, or other similar obligations arising in the ordinary course
of business;
(o) Leases under which the Company or any Restricted Subsidiary is
the lessee or the lessor;
(p) purchase money mortgages or other purchase money liens (including
without limitation any Capitalized Lease Obligations) upon any fixed or
capital assets acquired after the date of this Indenture, or purchase money
mortgages (including without limitation Capitalized Lease Obligations) on
any such assets hereafter acquired or existing at the time of acquisition
of such assets, whether or not assumed, so long as (i) such mortgage or
lien does not extend to or cover any other asset of the Company or any
Restricted Subsidiary and (ii) such mortgage or lien secures the obligation
to pay the purchase price of such asset, interest thereon and other charges
incurred in connection therewith (or the obligation under such Capitalized
Lease Obligation) only;
(q) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(r) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(s) Liens to secure other Indebtedness; provided, however, that the
principal amount of any Indebtedness secured by such Liens, together with
the principal amount of any Indebtedness refinancing any Indebtedness
incurred under this clause (s) as permitted by clause (t) below (and
successive refinancings thereof), may not exceed 15% of the Company's
Consolidated Net Tangible Assets as of the last day of the Company's most
recently completed fiscal year for which financial information is
available; and
13
(t) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (s); provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Physical Security" shall have the meaning set forth in Section 303.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated)
of such Person's preferred or preference stock, whether now Outstanding or
issued after the date of this Indenture, and includes, without limitation,
all classes and series of preferred or preference stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Receivables and Related Assets" means (i) accounts receivable,
instruments, chattel paper, obligations, general intangibles, equipment and
other similar assets, including interests in merchandise or goods, the sale
or Lease of which gives rise to the foregoing, related contractual rights,
guarantees, insurance proceeds, collections and other related assets, (ii)
equipment, (iii) inventory and (iv) proceeds of all of the foregoing.
"Refinancing Indebtedness" means Indebtedness of the Company
incurred to redeem, repurchase, defease or otherwise acquire or retire for
value other Indebtedness that is subordinate in right of payment to the
Securities, so long as any such new Indebtedness (i) is made subordinate to
the Securities at least to the same extent as the Indebtedness being
refinanced and (ii) does not have (x) an Average Life less than the Average
Life of the Indebtedness being refinanced, (y) a final scheduled maturity
earlier than the final scheduled maturity of the Indebtedness being
refinanced, or (z) permit redemption at the option of the holder earlier than
the earlier of (A) the final scheduled maturity of the Indebtedness being
14
refinanced or (B) any date of redemption at the option of the holder of the
Indebtedness being refinanced.
"Registered Securities" means Securities issued or sold in a
transaction pursuant to an effective registration statement under the
Securities Act of 1933, as amended, as contemplated in the Registration
Rights Agreement, and any Exchange Security subsequently issued in exchange
for or upon transfer of any such Security.
"Registration Rights Agreement" means the Registration Rights
Agreement dated August 26, 1997 among the Company and the Initial Purchasers,
a form of which Registration Rights Agreement is attached hereto as Exhibit C.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 31 or July 31 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Regulation S Global Security" shall have the meaning set forth in
Section 303.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers or assigned by the Trustee to administer corporate
trust matters at its Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Payment" means
(a) any Stock Payment by the Company or a Restricted Subsidiary;
(b) any direct or indirect payment to redeem, purchase, defease or
otherwise acquire or retire for value, or permit any Restricted Subsidiary
to redeem, purchase, defease or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Indebtedness of the Company that is subordinate in
right of payment to the Securities; provided, however, that any direct or
indirect payment to redeem, purchase, defease or otherwise acquire or
retire for value, or permit any Restricted Subsidiary to redeem,
purchase, defease or otherwise acquire or retire for value, prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness that is subordinate in right of payment to the
Securities shall not be a Restricted Payment if either (i) after giving
effect thereto, the ratio of the Senior Indebtedness of
15
the Company and the Restricted Subsidiaries to Annualized Operating Cash
Flow determined as of the last day of the most recent month for which
financial information is available is less than or equal to 5 to 1 or
(ii) such subordinate Indebtedness is redeemed, purchased, defeased or
otherwise acquired or retired in exchange for, or out of (x) the proceeds
of a sale (within one year before or 180 days after such redemption,
purchase, defeasance, acquisition or retirement) of, Refinancing
Indebtedness, or Capital Stock of the Company or warrants, rights or
options to acquire Capital Stock of the Company or (y) any source of funds
other than the incurrence of Indebtedness; or
(c) any direct or indirect payment to redeem, purchase, defease or
otherwise acquire or retire for value any Disqualified Stock at its
mandatory redemption date or other maturity date if and to the extent that
Indebtedness is incurred to finance such redemption, purchase, defeasance
or other acquisition or retirement; provided, however, that the redemption,
purchase, defeasance or other acquisition or retirement of Mandatorily
Redeemable Preferred Stock at its mandatory redemption or other maturity
date shall not be a Restricted Payment if and to the extent any
Indebtedness incurred to finance all or a portion of the purchase or
redemption price does not have a final scheduled maturity date, or permit
redemption at the option of the holder thereof, earlier than the final
scheduled maturity of the Securities.
Notwithstanding the foregoing, Restricted Payments shall not include (x)
payments by any Restricted Subsidiary to the Company or any other Restricted
Subsidiary or (y) any Investment or designation of a Restricted Subsidiary as
an Unrestricted Subsidiary permitted under Section 1010.
"Restricted Security" shall have the meaning set forth in Section 205.
"Restricted Subsidiary" means any Subsidiary, whether existing on
the date hereof or created subsequent hereto, designated from time to time by
the Company as a "Restricted Subsidiary" and the initial Restricted
Subsidiaries designated by the Company are set forth on Exhibit A; provided,
however, that no Subsidiary that is not a Securitization Subsidiary can be or
remain so designated unless (i) at least 67% of each of the total equity
interest and the voting control of such Subsidiary is owned, directly or
indirectly, by the Company or another Restricted Subsidiary and (ii) such
Subsidiary is not restricted, pursuant to the terms of any loan agreement,
note, indenture or other evidence of indebtedness, from (a) paying dividends
or making any distribution on such Subsidiary's Capital Stock or other equity
securities or paying any Indebtedness owed to the Company or to any
Restricted Subsidiary, (b) making any loans or advances to the Company or any
Restricted Subsidiary or (c) transferring any of its properties or assets to
the Company or any Restricted Subsidiary (it being understood that a
financial covenant any of the components of which are directly
16
impacted by the taking of the action (e.g., the payment of a dividend) itself
(such as a minimum net worth test) would be deemed to be a restriction on the
foregoing actions, while a financial covenant none of the components of which
is directly impacted by the taking of the action (e.g., the payment of a
dividend) itself (such as a debt to cash flow test) would not be deemed to be
a restriction on the foregoing actions); and provided further that the
Company may, from time to time, redesignate any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with Section 1010.
"Rule 144A Global Security" shall have the meaning set forth in
Section 303.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Issue Date" means August 26, 1997 with respect to the
Initial Securities and the date of original issuance of the Exchange
Securities with respect to the Exchange Securities.
"Securitization Subsidiary" means a Restricted Subsidiary that is
established for the limited purpose of acquiring and financing Receivables
and Related Assets and engaging in activities ancillary thereto; provided
that (i) no portion of the Indebtedness of a Securitization Subsidiary is
guaranteed by or is recourse to the Company or any other Restricted
Subsidiary (other than recourse for customary representations, warranties,
covenants and indemnities, none of which shall relate to the collectibility
of the Receivables and Related Assets) and (ii) none of the Company or any
other Restricted Subsidiary has any obligation to maintain or preserve such
Securitization Subsidiary's financial condition.
"Security" and "Securities" have the meaning set forth in the second
paragraph of this Indenture, such terms to include both the Initial
Securities and the Exchange Securities.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, with respect to any Person, all
principal of and interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to such Person
whether or not a claim for post filing interest is allowed in such
proceedings) with respect to all Indebtedness of such Person; provided that
Senior Indebtedness shall not include (i) any Indebtedness of such Person
that, by its terms or the terms of the instrument creating or evidencing such
Indebtedness, is expressly subordinate in right of payment to the Securities,
(ii) any guarantee of Indebtedness of any subsidiary of such Person if
recourse against such guarantee is limited to the Capital Stock or other
equity interests of such subsidiary, (iii) any obligation of such Person to
any subsidiary of such Person or, in the case of a Restricted Subsidiary, to
the Company or any other
17
Subsidiary or (iv) any Indebtedness of such Person (and any accrued and
unpaid interest in respect thereof) which is subordinate or junior in any
respect to any other Indebtedness or other obligation of such Person.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Record Date" means a date fixed by the Trustee for the
payment of any Defaulted Interest pursuant to Section 307.
"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.
"Stock Payment" means, with respect to any Person, the payment or
declaration of any dividend, either in cash or in property (except dividends
payable in Common Stock or common shares of Capital Stock of such Person), or
the making by such Person of any other distribution, on account of any shares
of any class of its Capital Stock, now or hereafter Outstanding, or the
redemption, purchase, retirement or other acquisition or retirement for value
by such Person, directly or indirectly, of any shares of any class of its
Capital Stock, now or hereafter Outstanding, other than the redemption,
purchase, defeasance or other acquisition or retirement for value of any
Disqualified Stock at its mandatory redemption date or other maturity date.
"subsidiary" means, as to a particular parent entity at any time,
any entity of which more than 50% of the Outstanding Voting Stock or other
equity interest entitled ordinarily to vote in the election of the directors
or other governing body (however designated) of such entity is at the time
beneficially owned or controlled directly or indirectly by such parent
corporation, by one or more such entities or by such parent corporation and
one or more such entities.
"Subsidiary" means any subsidiary of the Company.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was
executed, except as provided in Section 905; provided, however, that, in the
event that the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
18
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Voting Stock" means any Capital Stock having voting power under
ordinary circumstances to vote in the election of a majority of the directors
of a corporation (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 102. Other Definitions.
Term Defined
in Section
"Act"......................................................... 105
"Bankruptcy Law".............................................. 501
"covenant defeasance"......................................... 1203
"Custodian"................................................... 501
"defeasance".................................................. 1202
"Defaulted Interest".......................................... 307
"incorporated provision"...................................... 108
"redesignation of a Restricted Subsidiary".................... 1010
"Restricted Security"......................................... 205
"Security Register"........................................... 305
"Security Registrar".......................................... 305
"successor"................................................... 801
"U.S. Government Obligations"................................. 1204
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that, in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
19
Every certificate or opinion (other than the certificates required
by Section 1013) with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
20
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Trust Indenture Act Section
315) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so.
Notwithstanding Trust Indenture Act Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not more than 30 days prior to the first solicitation
of Holders generally in connection therewith and no later than the date such
solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
21
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, suffered or omitted to be done by the Trustee,
any Paying Agent or the Company in reliance thereon, whether or not notation
of such action is made upon such Security.
Section 106. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the agents of the Banks or the Company
shall be sufficient for every purpose hereunder if made, given, furnished or
delivered, in writing, to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered in writing to the Company addressed to
it c/o Cablevision Systems Corporation, Xxx Xxxxx Xxxxxxxxx, Xxxxxxxx,
Xxx Xxxx 00000, Attention: Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
22
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of
giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
Section 108. Conflict of Any Provision of Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Trust Indenture Act
Sections 310 to 318, inclusive, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this
Indenture by operation of such Trust Indenture Act Sections, such imposed
duties or incorporated provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
23
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, any date established
for payment of Defaulted Interest pursuant to Section 307, or any Maturity
with respect to any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date, or date established for payment of
Defaulted Interest pursuant to Section 307, or Maturity, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date, or date established for payment of Defaulted Interest
pursuant to Section 307, or Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Holder by accepting
any of the Securities waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally; Incorporation of Form in Indenture.
The Securities and the Trustee's certificate of authentication with
respect thereto shall be in substantially the forms set forth in this
Article, with such appropriate legends, insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may
have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to comply with the rules of
any securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of
the Securities. Any portion of the text of any Security may be set forth on
the reverse thereof, with an appropriate
24
reference thereto on the face of the Security. Each Security shall be dated
the date of its authentication.
The definitive Securities shall be typewritten, printed,
lithographed, engraved or otherwise produced or produced by any combination
of these methods or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
Section 202. Form of Face of Security.
CABLEVISION SYSTEMS CORPORATION
8 1/8% [SERIES B]* SENIOR DEBENTURE DUE 2009
No. $
_____ _____________
CUSIP No.
_____________
Cablevision Systems Corporation, a Delaware corporation (herein
called the "Company", which term includes any successor entity under this
Indenture hereinafter referred to), for value received, hereby promises to
pay to _________________ or registered assigns the principal sum of ______
Dollars on August 15, 2009, at the office or agency of the Company referred
to below, and to pay interest thereon on February 15 and August 15 in each
year from the Securities Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for at the rate of
8 1/8% per annum until the principal hereof is paid or duly provided for, and
(to the extent lawful) to pay on demand interest on any overdue interest at
the rate borne by the Securities from the date of the Interest Payment Date
on which such overdue interest becomes payable to the date payment of such
interest has been made or duly provided for.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of August 26, 1997 (the "Registration
Rights Agreement"), between the Company and the Initial Purchasers named
therein. In the event that either (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") with respect to an
exchange offer (the "Exchange Offer") for this Initial Security is not filed
with the Securities and Exchange Commission (the "Commission") on or prior to
October 25, 1997 or (ii) the Exchange Offer is not consummated or a registration
statement under the Securities Act with respect to resales of this Security (the
"Shelf Registration Statement") is not declared effective by the Commission on
or prior to February 22, 1998, in either case in accordance with the
Registration Rights Agreement, the aforesaid interest
rate borne by this
--------------------
* Include only for Exchange Securities.
25
Security shall be increased by one-quarter of one percent per annum for the
first 30 days following October 25, 1997 in the case of (i) above, or the
first 90 days following February 22, 1998 in the case of (ii) above. Such
interest rate will increase by an additional one-quarter of one percent per
annum at the beginning of each subsequent 30-day period in the case of (i)
above, or 90-day period in the case of (ii) above, up to a maximum aggregate
increase of one percent per annum. Upon (x) the filing of a registration
statement with respect to the Exchange Offer or (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, the interest rate borne by this Security will be reduced to 8 1/8
per annum.]**
If any interest has accrued on this Security in respect of any
period prior to the issuance of this Security, such interest will be payable
in respect of such period at the rate or rates borne by the Predecessor
Security surrendered in exchange for this Security from time to time during
such period. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 31 or July 31 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and interest
on such defaulted interest at the interest rate borne by this Security, to
the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payment of the principal of and interest on
this Security will be made at the office or agency of the Company maintained
for that purpose in The City of New York, or at such other office or agency
of the Company as may be maintained 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
payment of interest may be made at the option of the Company by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Security Register.
Reference is hereby made to the further provisions of 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.
_____________________________
** Include only for Initial Securities.
26
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under this
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CABLEVISION SYSTEMS CORPORATION
By
______________________________
Attest:
By
___________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 1/8% [Series B]* Senior Debentures due 2009
(herein called the "Securities"), limited (except as otherwise provided in
this Indenture referred to below) in aggregate principal amount to
$400,000,000, which may be issued under an indenture (herein called the
"Indenture") dated as of August 15, 1997, between the Company and The Bank of
New York, trustee (herein called the "Trustee", which term includes any
successor trustee under this Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, the Trustee, the holders of the Senior
Indebtedness and the Holders of the Securities, and of the terms upon which
the Securities are, and are to be, authenticated and delivered.
[This Security is exchangeable under certain circumstances as provided
in the Indenture for the Company's 8 1/8% Series B Senior Debentures due 2009
(herein called the "Exchange Securities", issued under the Indenture. Unless
the context otherwise requires, the Securities and Exchange Securities shall
constitute one series for all purposes under the Indenture, including without
limitation amendments and waivers.]**
_________________________
* Include only for Exchange Securities.
** Include only for Initial Securities.
27
This Security is not subject to redemption at the option of the
Company prior to Maturity.
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with
the effect provided in this Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
This Security does not have the benefit of any sinking fund
obligations.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the
Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained
for such purpose in The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
28
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges payable in connection with any registration of
transfer or exchange.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles thereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Certificate of Transfer **
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
this Security to
______________________________________________________________________________
(Please typewrite or print name and taxpayer identification number)
______________________________________________________________________________
(Please typewrite or print address)
and hereby irrevocably constitutes and appoints
_________________________________ his attorney to transfer the same on the
books of the Company, with full power of substitution in the premises.
** Include only for Initial Securities.
29
In connection with any transfer of all or any portion of the
Security evidenced by this certificate for as long as such Security is a
Restricted Security, the undersigned confirms that such Security is being
transferred:
/ / (a) Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act");
or
/ / (b) Pursuant to offers and sales to non-U.S. Persons that occur
outside the United States within the meaning of Regulation S under
the Securities Act;
Unless one of the boxes above is checked, the Trustee will refuse to
register all or any portion of the Security evidenced by this certificate in
the name of any person other than the registered holder thereof (or hereof);
provided, however, that the Trustee may, in its sole discretion, register the
transfer of such Security if it has received such certifications, legal
opinions and/or other information as it has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933, as amended.
Dated:
Signature
__________________________
_________________________
NOTE: The signature to this assignment must correspond with the name as
written upon the face of this Security in every particular, without
alteration or enlargement, or any change whatever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144(d)(4)) or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:___________________ ______________________________________
To be signed by an executive officer
30
SCHEDULE OF EXCHANGES FOR DEFINITIVE SECURITIES
The following exchanges of a part of this Security in global form for
definitive Securities or of definitive Securities for a part of this Security
in global form have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Security authorized
Principal Principal in global form signatory of
Amount of Amount of following such Trustee or
Date of this Security this Security decrease (or Securities
Exchange in global form in global form increase) Custodian
________ ______________ ______________ _______________ ____________
Section 204. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By____________________
Authorized Signatory
Dated:
Section 205. Form of Legend on Restricted Securities.
During the period beginning on August 26, 1997 and ending on the later
of August 26, 1999 and the date two years after the last date on which the
Company or any Affiliate of the Company was the owner of an Initial Security
(or any Predecessor Security), any such Initial Security issued or owned during
the period set forth above, as the case may be, and any Initial Security issued
upon registration of transfer of, or in exchange for, or in lieu of, such
Initial Security shall be deemed a "Restricted Security" and shall be subject
to the restrictions on transfer provided in the legend set forth below;
provided, however, that
31
the term "Restricted Security" shall not include (a) any Initial Security
which is issued upon transfer of, or in exchange for, any Initial Security
which is not a Restricted Security or (b) any Initial Security as to which
such restrictions on transfer have been terminated in accordance with Section
314 or (c) any Exchange Security issued pursuant to an Exchange Offer. Any
Restricted Security shall bear a legend in substantially the following form:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF ORIGINAL ISSUE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT; PROVIDED THAT THE COMPANY SHALL HAVE THE RIGHT PRIOR
TO ANY SUCH OFFER, SALE PLEDGE OR TRANSFER (i) PURSUANT TO CLAUSE (D)
OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION (IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY) OF COUNSEL SATISFACTORY TO THE
COMPANY, AND CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
THE COMPANY, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS
32
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY.
Section 206. Form of Legend for Book-Entry Securities.
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX
XXXX, XXX XXXX 00000) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE
FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
33
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $400,000,000,
except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 303, 304, 305, 306 or 906.
The Initial Securities shall be known and designated as the "8 1/8%
Senior Debentures due 2009" and the Exchange Securities shall be known and
designated as the "8 1/8% Series B Senior Debentures due 2009" of the
Company. Their Stated Maturity shall be August 15, 2009, and they shall bear
interest at the rate of 8 1/8% per annum (except as otherwise provided for in
the form of Security) from the Security Issue Date, or the most recent
Interest Payment Date to which interest has been paid or duly provided for on
a given Security or a Security surrendered in exchange for such Security, as
the case may be, payable on February 15, 1998 and semiannually thereafter on
February 15 and August 15 in each year and at said Stated Maturity, until the
principal thereof is paid or duly provided for. The initial Interest Payment
Date for any Security shall be the first February 15 or August 15 occurring
after the Security Issue Date for such Security. The Initial Securities and
the Exchange Securities shall rank pari passu.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company maintained for such purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that, at the option of the
Company, cash interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities are not subject to redemption at the option of the
Company.
At the election of the Company, the entire indebtedness represented
by the Securities or certain of the Company's obligations and covenants and
certain Events of Default thereunder may be defeased as provided in Article
Twelve.
The Securities will be senior unsecured obligations of the Company
and will rank pari passu in right of payment with all existing and future
unsubordinated indebtedness of the Company.
34
Section 302. Denominations.
The Securities shall be issauble only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any one
of the following: its Chairman, one of its Vice Chairmen, its President or
one of its Vice Presidents and attested by one of its Vice Presidents or its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
The Trustee shall (upon Company Order) authenticate and deliver
Securities for original issue in an aggregate principal amount of up to
$400,000,000.
Each Security shall be dated the date of its authentication.
No Security endorsed thereon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of one
of its duly authorized signatories, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey,
transfer, lease or otherwise dispose of substantially all of its properties
and assets to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, Lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any
of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, Lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for
35
such exchange and of like principal amount; and the Trustee, upon written
order of the successor Person, shall authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for
or upon registration of transfer of any Securities, such successor Person, at
the option of any Holder but without expense to such Holder, shall provide
for the exchange of all Securities at the time Outstanding held by such
Holder for Securities authenticated and delivered in such new name.
Except as described below, the Securities will be deposited with, or
on behalf of, the Depository, and registered in the name of the Depository or
the nominee of the Depository in the form of one or more global note
certificates (each a "Rule 144A Global Security"), for credit to the
respective accounts of the beneficial owners of the Securities represented
thereby. The Rule 144A Global Securities shall bear the legend set forth in
Section 206 and, in the case of Restricted Securities, the legend set forth
in Section 205.
Securities purchased by persons outside the United States pursuant
to sales in accordance with Regulation S under the Securities Act shall be
deposited with, or on behalf of, the Depository, and registered in the name
of the Depository or the nominee of the Depository in the form of one or more
global note certificates (each a "Regulation S Global Security"), for credit
to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct), provided
that upon such deposit all such Securities shall be credited to or through
accounts maintained at the Depository by or on behalf of the Euroclear System
or Cedel Bank, S.A. Securities represented by a Regulation S Global Security
will not be exchangeable for Securities in registered definitive form (each a
"Physical Security") until the expiration of the "40-day restricted period"
within the meaning of Rule 903(c)(3) of Regulation S under the Securities
Act. The Regulation S Global Securities shall bear the legend set forth in
Section 206 and, in the case of Restricted Securities, the legend set forth
in Section 205.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are typewritten, printed, lithographed, engraved
or otherwise produced or produced by any combination of these methods, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive
36
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. Such
Security Register shall distinguish between Initial Securities and Exchange
Securities.
Except as otherwise described in this Article Three, upon surrender
for registration of transfer of any Security at the office or agency of the
Company designated pursuant to Section 1002 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations and of a like
aggregate principal amount upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive; provided that no exchange of Initial Securities for Exchange
Securities shall occur until an Exchange Offer Registration Statement shall
have been declared effective by the Commission, the Trustee shall have
received an Officers' Certificate confirming that the Exchange Offer
Registration Statement has been declared effective by the Commission and the
Initial Securities to be exchanged for the Exchange Securities shall be
cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and (subject to the provisions in the Initial Securities regarding
the payment of additional interest) entitled to the
37
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange, shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
Every Restricted Security shall be subject to, and no transfer shall
be made other than in accordance with, the restrictions on transfer provided
in the legend set forth on the form of the face of each Restricted Security
and the restrictions set forth in this Article Three, and the Holder of each
Restricted Security, by such Holder's acceptance thereof, agrees to be bound
by such restrictions on transfer.
The Security Registrar shall notify the Company of any proposed
transfer of a Restricted Security to any Person.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 303, 304 or 906 not involving any transfer.
The Company shall not be required to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
15 days before an Interest Payment Date and ending on the close of business
on such Interest Payment Date.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them and any agent of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, and bearing a number
not contemporaneously outstanding.
38
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section
306, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section 306 in
lieu of any destroyed, lost or stolen Security shall constitute a contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. The initial Interest Payment Date for any Security shall be the
first February 15 or August 15 occurring after the Securities Issue Date for
such Security.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the interest rate borne by the Securities, to the
extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder; and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be
39
paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Subsection
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date. In the name and at the
expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Subsection,
such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to the time of due presentment for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
40
Section 309. Cancellation.
All Securities surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this
Section 309, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by the
Company pursuant to a Company Order, provided, however, that the Trustee
shall not be required to destroy such cancelled Securities.
Section 130. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 311. Registration Rights of Holders of Initial Securities.
Pursuant to the terms of the Registration Rights Agreement, holders
of Initial Securities, if any, shall be entitled to the benefits of the
Registration Rights Agreement.
Section 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers, and, if so, the Trustee
shall use such "CUSIP" numbers in addition to serial numbers in notices of
repurchase as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Securities, and any such repurchase
shall not be affected by any defect in or omission of such "CUSIP" numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
Section 313. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as
set forth in Section 206 and, in the case of Restricted Securities in the
form of Global Securities, Section 205.
41
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in a Rule 144A Global
Security may be transferred or exchanged for interests in a Regulation S
Global Security, and interests of beneficial owners in a Regulation S Global
Security may be transferred or exchanged for interests in a Rule 144A Global
Security, in each case in accordance with the rules and procedures of the
Depository and the provisions of Section 314. Interests of beneficial owners
in the Global Securities may be transferred or exchanged for Physical
Securities in accordance with the rules and procedures of the Depository and
the provisions of Section 314.
In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (i) the Depository notifies the Company that it is unwilling or
unable to continue as a depository for such Global Security or if at any time
the Depository ceases to be a clearing agency registered under the Exchange
Act, and a successor depository is not appointed by the Company within 90
days, (ii) there shall have occurred and be continuing an Event of Default
with respect to the Securities represented by such Global Security or (iii)
the Company at any time determines not to have Securities represented by a
Global Security.
Except as provided above, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any
Global Security, whether pursuant to this Section 313, Section 304, 305, 306
or 906 or otherwise, shall also be a Global Security and bear the legend
specified in Section 206.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interest in the Global Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver,
42
one or more Physical Securities of like tenor and principal amount of
authorized denominations.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in the Global Securities, an equal aggregate
principal amount of Physical Securities of like tenor of authorized
denominations.
(e) Any Physical Security delivered in exchange for an interest in a
Global Security pursuant to paragraph (b) or (c) of this Section 313 shall,
except as otherwise provided by clause (1)(x) of paragraph (a) and by
paragraph (d) of Section 314, bear the legend set forth in Section 205.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 314. Special Transfer Provisions.
(a) Transfers to Non-U.S. Persons. The following provisions shall
apply with respect to the registration of any proposed transfer of a
Restricted Security to any non-U.S. person:
(1) the Security Registrar shall register the transfer of any
Restricted Security if (x) the requested transfer is not prior to the
date which is two years (or such other period as may be prescribed by
Rule 144(k) under the Securities Act or any successor provision
thereunder) after the later of the original issue date of such
Security (or of any Predecessor Security) or the last day on which
the Company or any Affiliate of the Company was the owner of such
Security or any Predecessor Security or (y) the proposed transferee has
checked the box provided for on the form of Security stating, and has
provided to the Security Registrar such certifications, opinions and
other information as the Security Registrar may (and, if so directed by
the Company, shall) require, stating that such Security is being
transferred pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act; and
(2) the Security Registrar shall register the transfer of any
Restricted Security if the proposed transferor is an Agent Member
holding a beneficial interest in a Rule 144A Global Security, upon
receipt by the Security Registrar of (x) the
43
certificate, if any, required by paragraph (1) above and (y)
instructions given in accordance with the Depository's and the
Security Registrar's procedures;
whereupon the Security Registrar shall reflect on its books and records the
date of such transfer and (A) (if the transfer involves a transfer of a
beneficial interest in a Rule 144A Global Security) a decrease in the
principal amount of such Rule 144A Global Security in an amount equal to the
principal amount to be transferred and (B) an increase in the principal
amount of a Regulation S Global Security in an amount equal to the principal
amount to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security
to a person purporting to be a QIB (excluding transfers to non-U.S. persons):
(1) the Security Registrar shall register the transfer of any
Restricted Security if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Security
stating, or who has otherwise advised the Company and the Security
Registrar in writing, that the transfer has been made in compliance
with the exemption from registration under the Securities Act provided
under Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised
the Company and the Security Registrar in writing, that such transferee
represents and warrants that it is purchasing the Security for its own
account or an account with respect to which it exercises sole
investment discretion and that each of it and any such account is a
QIB within the meaning of Rule 144A and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(2) the Security Registrar shall register the transfer of any
Restricted Security if the proposed transferee is an Agent Member, and
the Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the Rule 144A
Global Security, upon receipt by the Security Registrar of instructions
given in accordance with the Depository's and the Security Registrar's
procedures, the Security Registrar shall reflect on the Security
Register the date and an increase in the principal amount of the
Rule 144A Global Security in an amount equal to the principal amount
of the Physical Securities to be transferred, and the Trustee shall
cancel the Physical Securities so transferred.
44
(c) Other Transfers. If a Holder proposes to transfer a Security
pursuant to any exemption from the registration requirements of the
Securities Act other than as provided for by Sections 314(a) and 314(b), the
Security Registrar shall only register such transfer or exchange if such
transferor delivers to the Security Registrar and the Trustee an Opinion of
Counsel satisfactory to the Company and the Security Registrar that such
transfer is in compliance with the Securities Act and the terms of this
Indenture; provided that the Company may, based upon the opinion of its
counsel, instruct the Security Registrar by a Company Order not to register
such transfer in any case where the proposed transferee is not a QIB or a
non-U.S. person.
(d) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Restricted Securities, the Security Registrar
shall deliver only Securities that bear the legend set forth in Section 205
unless the circumstances contemplated by clause (a)(1)(x) of this Section 314
exist. By its acceptance of any Security bearing the legend set forth in
Section 205, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in such legend and
agrees that it will transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 313 or this
Section 314 for a period of two years, after which time such letters, notices
and other written communications shall at the written request of the Company
be delivered to the Company. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable prior written notice to the
Security Registrar.
(e) Termination of Restrictions. The restrictions imposed by this
Section 314 upon the transferability of any particular Restricted Security
shall cease and terminate (a) on the later of August 26, 1999 and two years
after the last date on which the Company or any Affiliate of the Company was
the owner of such Restricted Security (or any predecessor of such Restricted
Security) or (b) (if earlier) if and when such Restricted Security has been
sold pursuant to an effective registration statement under the Securities
Act. Any Restricted Security as to which such restrictions on transfer shall
have expired in accordance with their terms or shall have terminated may,
upon surrender of such Restricted Security for exchange to the Trustee or any
transfer agent in accordance with the provisions of Section 305, be exchanged
for a new Initial Security, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by Section 205. The
Company shall inform the Trustee in writing of (a) the effective date of any
registration statement registering the Initial Securities under the
Securities Act and (b) at the request of the Trustee, the date which is two
years after the last date on which the Company or any Affiliate of the
Company was the owner of a Restricted Security in the event that an Exchange
Offer has not been consummated.
45
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of Securities herein expressly provided for) and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable within one year,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
46
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money
shall have been deposited with the Trustee pursuant to subclause (2) of
Subsection (a) of this Section 401, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and such default continues for a
period of 30 days;
(b) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon
acceleration or otherwise;
(c) the Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities or this Indenture, and the
Default continues for the period and after the notice, if any, specified
below;
(d) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or one of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or one of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists or shall
47
be created hereafter (but excluding any Indebtedness for the deferred
purchase price of property or services owed to the Person providing such
property or services as to which the Company or such Restricted Subsidiary
is contesting its obligation to pay the same in good faith and by proper
proceedings and for which the Company or such Restricted Subsidiary has
established appropriate reserves), and (i) either (A) such event of default
results from the failure to pay any such Indebtedness at final maturity or
(B) as a result of such event of default the maturity of such Indebtedness
has been accelerated prior to its expressed maturity and (ii) the principal
amount of such Indebtedness equals $10,000,000 or more or, together with
the principal amount of any such Indebtedness in default for failure to pay
principal at maturity or the maturity of which has been so accelerated,
aggregates $10,000,000 or more;
(e) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the
Company or any Restricted Subsidiary and either (i) an enforcement
proceeding shall have been commenced by any creditor upon such judgment
or (ii) such judgment remains undischarged and unbonded for a period
(during which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such judgments exceeds $10,000,000;
(f) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing that it generally is unable to pay its
debts as the same become due; or
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case
or proceeding,
48
(ii) appoints a Custodian of the Company or for all or
substantially all of its property, or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state 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 Section 501(c) is not an Event of Default until the
Trustee notifies the Company in writing, or the Holders of at least 25% in
principal amount of the Securities then Outstanding notify the Company and
the Trustee in writing, of the Default, and the Company does not cure the
Default within 60 days (30 days in the case of a Default under Section 801 or
1004) 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 to the Company shall be given by the Trustee if so
requested in writing by the Holders of 25% of the principal amount of the
Securities then Outstanding.
Section 502. Acceleration of Maturity; Rescission.
If an Event of Default (other than an Event of Default specified in
Section 501(f) or 501(g)) occurs and is continuing, the Trustee or the
Holders of at least 25% of the principal amount of the Initial Securities and
the Exchange Securities then Outstanding, voting together as a single class,
by written notice to the Company and the agents, if any, under the Bank
Credit Agreement (and to the Trustee if such notice is given by the Holders),
may, and the Trustee at the request of such Holders shall, declare all unpaid
principal of and accrued interest on all the Securities to be due and
payable, as specified below. Upon a declaration of acceleration, such
principal and accrued interest shall be due and payable 10 days after receipt
by the Company of such written notice given hereunder. If an Event of
Default specified in Section 501(f) or 501(g) with respect to the Company
occurs, the amounts described above shall ipso facto become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. Upon payment of such principal and interest
all of the Company's obligations under the Securities and this Indenture,
other than obligations under Section 606, shall terminate.
The Holders of at least a majority in principal amount of the
Initial Securities and the Exchange Securities then Outstanding, voting
together as a single class, by written notice to the Trustee, may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the non-payment of principal of or interest on the Securities
which have become due solely because of the acceleration, have been cured or
waived and
49
(ii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because an Event of
Default specified in Section 501(d) shall have occurred and be continuing,
such declaration of acceleration shall be automatically annulled if the
Indebtedness that is the subject of such Event of Default has been discharged
or the holders thereof have rescinded their declaration of acceleration in
respect of such Indebtedness, and written notice of such discharge or
rescission, as the case may be, shall have been given to the Trustee by the
Company and countersigned by the holders of such Indebtedness or a trustee,
fiduciary or agent for such holders, within 30 days after such declaration of
acceleration in respect of the Securities, and no other Event of Default has
occurred during such 30-day period which has not been cured or waived during
such period.
Notices by the Trustee to the agents under the Bank Credit Agreement
provided for herein shall be delivered or mailed to Toronto Dominion (Texas),
Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Agency
Department; and to any other person who hereafter becomes an agent under the
Bank Credit Agreement, provided the Trustee has been notified by the Company
or the Banks of the names and mailing addresses of such persons.
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(b) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, with interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
50
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders under this Indenture by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
such rights.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by
each Holder 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
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
proposal, plan of
51
reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal and interest, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
52
(b) the Holders of not less than 25% in principal amount of the
Initial Securities and the Exchange Securities then Outstanding, voting
together as a single class, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture except in the
manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest on
such Security on the respective due dates expressed in such Security and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
53
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Initial
Securities and the Exchange Securities then Outstanding, voting together as a
single class, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability, and
(b) subject to the provisions of Trust Indenture Act Section 315, the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Initial
Securities and the Exchange Securities then Outstanding, voting together as a
single class, may on behalf of the Holders of all the Securities waive any
past Default or Event of Default hereunder and its consequences, except a
Default or Event of Default
(a) in the payment of the principal of or interest on any Security, or
54
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. 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 any court may
in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 514
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Initial Securities and the Exchange Securities then
Outstanding, voting together as a single class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the respective Stated Maturities expressed in
such Security; provided that neither this Section 514 nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the Company.
Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
55
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
Within 90 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, notice of such Default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest
of the Holders; and provided further that, in the case of any default or
breach of the character specified in Section 501(d), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
Section 602. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
56
(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 Holders pursuant to this Indenture, unless such
Holders 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
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder; and
(h) 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 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.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the statements to be made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein.
57
Section 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Trust Indenture Act Sections 310(b)
and 311, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
Section 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim,
liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, 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.
As security for the performance of the obligations of the Company
under this Section 606, the Trustee shall have a Lien prior to the Securities
upon all property and funds
58
held or collected by the Trustee as such, except funds held in trust for the
benefit of Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(f) or 501(g), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services will be intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 606 shall survive the termination of
this Indenture.
Section 607. Conflicting Interests.
(a) The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act.
(b) The indenture dated as of February 15, 1993, for the Company's
9 7/8% Senior Subordinated Debentures due 2013, the indenture dated as of
April 1, 1993, for the Company's 9 7/8% Debentures due 2023 and the
indenture dated as of November 1, 1995, for the Company's 9 1/4% Senior
Subordinated Debentures due 2005, the Company's 9 7/8% Senior Subordinated
Debentures due 2006 and the Company's 10 1/2% Senior Subordinated Debentures
due 2016, shall be deemed to be specifically described herein for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder qualified or to be
qualified under Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least $25,000,000 to the extent there is
such an institution eligible and willing to serve. If the Trustee publishes
reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section
608, the combined capital and surplus of the Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 608, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
59
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered
to the Trustee and the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, the Holder of any Security who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with Section 610, become the successor Trustee and
supersede the successor Trustee appointed by
60
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Securities and so accepted appointment, the
Holder of any Security who has been a bona fide Holder for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee,
provided, however, that the retiring Trustee shall continue to be entitled to
the benefit of Section 606(c); but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
61
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 612. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the
Holders in accordance with Trust Indenture Act Section 312, regardless of the
source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a
request made under Trust Indenture Act Section 312.
Section 702. Reports by Trustee.
Within 60 days after April ____ of each year commencing with the
first April ____ after the Security Issue Date, the Trustee shall transmit by
mail to all Holders, as their names and addresses appear in the Security
Register, as provided in Trust Indenture Act Section 313(c), a brief report
dated as of such April ____ if required by Trust Indenture Act Section 313(a).
Section 703. Reports by Company.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations
62
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 703 as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into, or sell,
assign, transfer, lease, convey, or otherwise dispose of all or substantially
all of its assets to, any Person, unless:
(a) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment,
transfer, Lease, conveyance or disposition shall have been made, is a
corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia and shall assume by
supplemental indenture hereto all the obligations of the Company under
the Securities and this Indenture;
63
(b) immediately before and immediately after such transaction, and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing;
(c) immediately after such transaction, and after giving effect
thereto, the Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, Lease or conveyance
or disposition shall have been made (the "successor"), shall have a Cash
Flow Ratio not in excess of 9 to 1; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, or transfer and such supplemental indenture, if
one is required by this Section 801, comply with this Section 801 and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Cash Flow Ratio for purposes of this Section 801 shall be computed
as if any such successor were the Company.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
Lease or conveyance or other disposition of all or substantially all of the
assets, of the Company in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such sale, assignment, transfer, Lease, conveyance or other disposition is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein. When a successor
assumes all the obligations of its predecessor under this Indenture and the
Securities, the predecessor will be released from those obligations,
provided that in the case of a transfer by Lease, the predecessor corporation
shall not be released from the payment of principal and interest on the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or
64
more indentures supplemental hereto in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein or in the Securities
conferred upon the Company;
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that, in each case, such
provisions shall not adversely affect the interests of the Holders in any
material respect;
(d) to secure the Securities, if the Company so elects;
(e) to make any changes necessary to qualify this Indenture under
the Trust Indenture Act in connection with the Exchange Offer or the
Shelf Registration Statement; or
(f) to make any other change that does not adversely affect the
rights of any Holder.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Initial Securities and the Exchange
Securities then Outstanding, voting together as a single class, by Act of
such Holders delivered to the Company and the Trustee and the Company, each
when authorized by a Board Resolution, and the Trustee may enter into one or
more indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of waiving or modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplemental indenture,
amendment or waiver shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the coin or currency
in which the principal of any Security or the
65
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof; or
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(c) modify any of the provisions of this Section 902 or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Trust Indenture Act Section 315(a) through 315(d)
and Section 602 hereof) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
66
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain, in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. If the Corporate Trust Office is located
in New York City, then it shall be such office or agency of the Company,
unless the Company shall designate and maintain some other office or agency
for one or more of such purposes. The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes, and
may from time to time rescind such designation; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such
office or agency.
67
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum in same day
funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
68
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or interest
on any Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Company on Company
Request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Restricted Subsidiary of the Company and
the corporate rights (charter and statutory), corporate licenses and
corporate franchises of the Company and its Restricted Subsidiaries, except
where a failure to do so, singly or in the aggregate, is not likely to have a
materially adverse effect upon the business, assets, financial condition or
results of operations of the Company and the Restricted Subsidiaries taken as
a whole determined on a consolidated basis in accordance with generally
accepted accounting principles; provided that the Company shall not be
required to preserve any such existence (except of the Company), right,
license or franchise if the Board of Directors, or of the Restricted
Subsidiary concerned, shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company or such
Restricted Subsidiary and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments
and governmental charges levied or imposed upon it or any Subsidiary or upon
the income, profits or property of the Company or any of its Subsidiaries and
(b) all material lawful claims for labor, materials and supplies, which, if
unpaid, might by law become a lien upon the property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section 1006. Maintenance of Properties.
The Company shall cause all material properties owned by or leased
to it or any Restricted Subsidiary of the Company and necessary in the
conduct of its business or the business of such Restricted Subsidiary to be
maintained and kept in normal condition, repair
69
and working order, ordinary wear and tear excepted; provided that nothing in
this Section 1006 shall prevent the Company or any Restricted Subsidiary of
the Company from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the Restricted
Subsidiary concerned, or of any officer (or other agent employed by the
Company or any Restricted Subsidiary of the Company) of the Company or such
Restricted Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary of the Company and if such discontinuance or disposal is not
adverse in any material respect to the Holders.
The Company shall provide or cause to be provided, for itself and
any Restricted Subsidiaries of the Company, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured
against by corporations similarly situated and owning like properties in the
same general areas in which the Company or such Restricted Subsidiaries
operate.
Section 1007. Limitation on Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, incur, create, issue, assume,
guarantee or otherwise become liable for, contingently or otherwise, or
become responsible for the payment of, contingently or otherwise, any
Indebtedness (other than Indebtedness between or among any of the Company and
Restricted Subsidiaries) unless, after giving effect thereto, the Cash Flow
Ratio shall be less than or equal to 9 to 1.
Section 1008. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind, except for Permitted Liens, on or with respect to
any of its property or assets, whether owned at the date of this Indenture or
hereafter acquired, or any income, profits or proceeds therefrom, or assign
or otherwise convey any right to receive income thereon, unless (x) in the
case of any Lien securing Indebtedness that is subordinated in right of
payment to the Securities, the Securities are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Lien and (y)
in the case of any other Lien, the Securities are equally and ratably secured.
Section 1009. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Restricted Payment if (a) at the time of such
proposed Restricted Payment, a Default or Event of Default shall have
occurred and be continuing or shall occur as a
70
consequence of such Restricted Payment or (b) immediately after giving effect
to such Restricted Payment, the aggregate of all Restricted Payments that
shall have been made on or after July 1, 1988 would exceed the sum of:
(i) $25,000,000, plus
(ii) an amount equal to the difference between (A) the Cumulative
Cash Flow Credit and (B) 1.2 multiplied by Cumulative Interest
Expense.
For purposes of this Section 1009, the amount of any Restricted
Payment, if other than cash, shall be based upon fair market value as
determined by the Board of Directors, whose good faith determination shall be
conclusive.
The foregoing provisions of this Section 1009 shall not prevent (i)
the payment of any dividend within 60 days after the date of declaration
thereof, if at such date of declaration such payment complied with the
provisions or this Section 1009; (ii) the retirement, redemption, purchase,
defeasance or other acquisition of any shares of the Company's Capital Stock
or warrants, rights or options to acquire Capital Stock of the Company in
exchange for, or out of the proceeds of a sale (within one year before or
180 days after such retirement, redemption, purchase, defeasance or other
acquisition) of, other shares of the Company's Capital Stock or warrants,
rights or options to acquire Capital Stock of the Company; and (iii) the
redemption of or payments of cash dividends on the Company's 8% Series C
Cumulative Preferred Stock (the "Series C Preferred Stock") Outstanding on
January 1, 1997, which redemptions or dividends are provided for by the terms
of the Series C Preferred Stock in effect on such date (or the redemption of
or payment of cash dividends on any security of the Company issued in
exchange for or upon the conversion of such Series C Preferred Stock;
provided that the aggregate amount payable pursuant to the terms of such
security is no greater than the aggregate amount payable pursuant to the
terms of the Series C Preferred Stock). For purposes of determining the
aggregate permissible amount of Restricted Payments in accordance with clause
(b) of the first paragraph of this Section 1009, all amounts expended
pursuant to clauses (i) and (iii) of this paragraph shall be included and all
amounts expended or received pursuant to clause (ii) of this paragraph shall
be excluded; provided, however, that amounts paid pursuant to clause (i) of
this paragraph shall be included only to the extent that such amounts were
not previously included in calculating Restricted Payments.
For the purposes of this Section 1009, the net proceeds from the
issuance of shares of Capital Stock of the Company upon conversion of
Indebtedness shall be deemed to be an amount equal to (i) the accreted value
of such Indebtedness on the date of such conversion and (ii) the additional
consideration, if any, received by the Company upon such conversion thereof,
less any cash payment on account of fractional shares (such consideration, if
in property other than cash, to be determined by the Board of Directors,
71
whose good faith determination shall be conclusive). If the Company makes a
Restricted Payment which, at the time of the making of such Restricted
Payment, would in the good faith determination of the Company be permitted
under the requirements of this Section 1009, such Restricted Payment shall be
deemed to have been made in compliance with this Section 1009 notwithstanding
any subsequent adjustments made in good faith to the Company's financial
statements affecting Cumulative Cash Flow Credit or Cumulative Interest
Expense for any period.
Section 1010. Limitation on Investments in Unrestricted
Subsidiaries and Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) make any Investment or (ii) allow
any Restricted Subsidiary to become an Unrestricted Subsidiary (a
"redesignation of a Restricted Subsidiary"), in each case unless (a) no
Default or Event of Default shall have occurred and be continuing or shall
occur as a consequence of such Investment or such redesignation of a
Restricted Subsidiary and (b) after giving effect thereto, the Cash Flow
Ratio shall be less than or equal to 9 to 1.
The foregoing provisions of this Section 1010 shall not prohibit (i)
any renewal or reclassification of any Investment existing on the date hereof
or (ii) trade credit extended on usual and customary terms in the ordinary
course of business.
Section 1011. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to or purchase any property or assets from, or enter into any
contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, an Affiliate of the Company that is not a Subsidiary, having
a value, or for consideration having a value, in excess of $10,000,000
individually or in the aggregate unless the Board of Directors shall make a
good faith determination that the terms of such transaction are, taken as a
whole, no less favorable to the Company or such Subsidiary, as the case may
be, than those which might be available in a comparable transaction with an
unrelated Person. For purposes of clarification, this Section 1011 shall not
apply to any Restricted Payments permitted by Section 1009.
Section 1012. Provision of Financial Statements.
(a) The Company shall supply without cost to each Holder of the
Securities, and file with the Trustee (if not otherwise filed with the
Trustee pursuant to Section 703) within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and
quarterly reports and of the information, documents and other reports which
the Company may be required to file with the
72
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Securities
Exchange Act of 1934.
(b) If the Company is not required to file with the Commission such
reports and other information referred to in Section 1012(a), the Company
shall furnish without cost to each Holder of the Securities and file with the
Trustee (i) within 140 days after the end of each fiscal year after August
26, 1997, annual reports containing the information required to be contained
in Items 1, 2, 3, 6, 7, 8 and 9 of Form 10-K promulgated under the Exchange
Act, or substantially the same information required to be contained in
comparable items of any successor form, and (ii) within 75 days after the end
of each of the first three fiscal quarters of each fiscal year, quarterly
reports containing the information required to be contained in Form 10-Q
promulgated under the Exchange Act, or substantially the same information
required to be contained in any successor form.
(c) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder of a Restricted
Security, the Company will promptly furnish or cause to be furnished such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) to such Holder or to a prospective
purchaser of such Security designated by such holder, as the case may be, in
order to permit compliance by such holder with Rule 144A under the Securities
Act.
Section 1013. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year ending after August 26, 1997, a brief certificate of
its principal executive officer, principal financial officer or principal
accounting officer stating whether, to such officer's knowledge, the Company
is in compliance with all covenants and conditions under this Indenture. For
purposes of this Section 1013, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 1014. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1007 through 1012 if, before or
after the time for such compliance, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. No Right of Redemption.
The Securities are not subject to redemption at the option of the
Company.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 1202 or Section
1203 be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article Twelve.
Section 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 1205 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of Outstanding Securities to receive solely from the
trust fund described in Section 1204 and as more fully set forth in such
Section, payments in respect of the principal of and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (D) this Article
Twelve. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to the Securities.
74
Section 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company shall be released from its
obligations under any covenant contained in Article Eight and in Sections
1004 through 1012 with respect to the Outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder (it being understood that such Securities
shall not be deemed Outstanding for financial accounting purposes). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default
under Section 501(c), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. In addition, upon
the Company's exercise under Section 1201 of the option applicable to Section
1203, Sections 501(c) through 501(e) shall not constitute Events of Default.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) cash in U.S. Dollars
in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, cash in U.S. Dollars in an
amount, or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and interest on the Outstanding Securities on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
75
payments applicable to the Outstanding Securities on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to the
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Subsection 501(f) or 501(g) is concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (y) since August 26, 1997, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance
and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such defeasance had not occurred.
76
(5) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that the Holders of the Outstanding
Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6) In the case of an election under either Section 1202 or
1203, the Company shall represent to the Trustee that the deposit
made by the Company pursuant to its election under Section 1202 or
1203 was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the
Company or others.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United
States, each stating that all conditions precedent provided for
relating to either the defeasance under Section 1202 or the covenant
defeasance under Section 1203 (as the case may be) have been
complied with.
Section 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law. Money and
U.S. Government Obligations so held in trust are not subject to Article
Twelve.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money
77
or U.S. Government Obligations held by it as provided in Section 1204 which,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 1204(1)), are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1206. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1202 or
1203, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1202 or 1203, as
the case may be; provided, however, that, if the Company makes any payment of
principal of or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
* * * * *
This Indenture may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
CABLEVISION SYSTEMS CORPORATION
By:
----------------------------
Title:
Attest:
------------------------
Title:
THE BANK OF NEW YORK
By:
---------------------------
Title:
EXHIBIT A
List of Restricted Subsidiaries
A-R Cable Services - NY, Inc.
Arsenal MSub 2, Inc.
Cable Science Corporation
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Finance Corporation
Cablevision Finance Limited Partnership
Cablevision Lightpath, Inc.
Cablevision MFR, Inc.
Cablevision of Boston, Inc.
Cablevision of Brookline Limited Partnership
Cablevision of Brookline, Inc.
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Xxxxxx County, Inc.
Cablevision of Michigan, Inc.
Cablevision of Monmouth, Inc.
Cablevision of New Jersey, Inc.
Cablevision of New York City - Master L.P.
Cablevision of New York City - Phase I L.P.
Cablevision of Newark
Cablevision Systems Brookline Corporation
Cablevision Systems Dutchess Corporation
Cablevision Systems East Hampton Corporation
Cablevision Systems Great Neck Corporation
Cablevision Systems Huntington Corporation
Cablevision Systems Islip Corporation
Cablevision Systems Long Island Corporation
Cablevision Systems New York City Corporation
Cablevision Systems of Southern Connecticut Limited Partnership
Cablevision Systems Suffolk Corporation
Cablevision Systems Westchester Corporation
Cablevision Systems of Southern Connecticut Limited Partnership
Communications Development Corporation
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
CSC Gateway Corporation
NYC GP Corp.
NYC LP Corp.
Petra Cablevision Corporation
A-2
Samson Cablevision Corp.
Suffolk Cable Corporation
Suffolk Cable of Shelter Island, Inc.
Suffolk Cable of Smithtown, Inc.
EXHIBIT B
Form of Registration Rights Agreement
