1
Exhibit 4.3(a)
CHARTER COMMUNICATIONS HOLDINGS, LLC
AND
CHARTER COMMUNICATIONS HOLDINGS CAPITAL CORPORATION
as Issuers
AND
MARCUS CABLE HOLDINGS, LLC
as Guarantor
$1,475,000,000 (principal amount at maturity)
9.92% SENIOR DISCOUNT NOTES DUE 2011
-------------------------
INDENTURE
Dated as of March 17, 1999
XXXXXX TRUST AND SAVINGS BANK,
Trustee
-------------------------
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1) ................................................ 7.10
(a)(2) ................................................ 7.10
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(a)(5) ................................................ 7.10
(b) ................................................... 7.10
(c) ................................................... N.A.
311 (a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312 (a) ................................................... 2.05
(b) ................................................... 12.03
(c) ................................................... 12.03
313 (a) ................................................... 7.06
(b)(1) ................................................ 12.03
(b)(2) ................................................ 7.07, 12.03
(c) ................................................... 7.06; 12.02
(d) ................................................... 7.06
314 (a) ................................................... 4.03; 12.02
(b) ................................................... 12.02
(c)(1) ................................................ 12.04
(c)(2) ................................................ 12.04
(c)(3) ................................................ N.A.
(d) ................................................... N.A.
(e) ................................................... 12.05
(f) ................................................... N.A.
315 (a) ................................................... 7.01
(b) ................................................... 7.05; 12.02
(c) ................................................... 7.01
(d) ................................................... 7.01
(e) ................................................... 6.11
316 (a) (last sentence) ................................... 2.09
(a)(1)(A) ............................................. 6.05
(a)(1)(B) ............................................. 6.04
(a)(2) ................................................ N.A.
(b) ................................................... 6.07
(c) ................................................... 2.12
317 (a)(1) ................................................ 6.08
(a)(2) ................................................ 6.09
(b) ................................................... 2.04
318 (a) ................................................... 12.01
(b) ................................................... N.A.
(c) ................................................... 12.01
----------
N.A. means Not Applicable
This Cross-Reference Table is not part of the Indenture
----------------------------
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions............................................... 1
Section 1.02. Other Definitions......................................... 24
Section 1.03. Incorporation by Reference of Trust Indenture Act......... 25
Section 1.04. Rules of Construction..................................... 25
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating........................................... 26
Section 2.02. Execution and Authentication.............................. 26
Section 2.03. Registrar and Paying Agent................................ 27
Section 2.04. Paying Agent to Hold Money in Trust....................... 27
Section 2.05. Holder Lists.............................................. 28
Section 2.06. Transfer and Exchange..................................... 28
Section 2.07. Replacement Notes......................................... 40
Section 2.08. Outstanding Notes......................................... 40
Section 2.09. Treasury Notes............................................ 41
Section 2.10. Temporary Notes........................................... 41
Section 2.11. Cancellation.............................................. 41
Section 2.12. Defaulted Interest........................................ 42
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee........................................ 42
Section 3.02. Selection of Notes to Be Redeemed......................... 42
Section 3.03. Notice of Redemption...................................... 43
Section 3.04. Effect of Notice of Redemption............................ 43
Section 3.05. Deposit of Redemption Price............................... 44
Section 3.06. Notes Redeemed in Part.................................... 44
Section 3.07. Optional Redemption....................................... 44
Section 3.08. Mandatory Redemption...................................... 45
Section 3.09. Offer to Purchase by Application of Excess Proceeds....... 45
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.......................................... 47
Section 4.02. Maintenance of Office or Agency........................... 47
Section 4.03. Reports................................................... 48
Section 4.04. Compliance Certificate.................................... 48
Section 4.05. Taxes..................................................... 49
Section 4.06. Stay, Extension and Usury Laws............................ 50
Section 4.07. Restricted Payments....................................... 50
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Section 4.08. Investments............................................... 53
Section 4.09. Dividend and Other Payment Restrictions Affecting
Subsidiaries........................................... 53
Section 4.10. Incurrence of Indebtedness and Issuance of Preferred
Stock.................................................. 55
Section 4.11. Limitation on Asset Sales................................. 58
Section 4.12. Sale and Leaseback Transactions........................... 60
Section 4.13. Transactions with Affiliates.............................. 60
Section 4.14. Liens..................................................... 61
Section 4.15. Corporate Existence....................................... 61
Section 4.16. Repurchase at the Option of Holders upon a Change of
Control................................................ 62
Section 4.17. Limitations on Issuances of Guarantees of
Indebtedness........................................... 63
Section 4.18. Payments for Consent...................................... 64
Section 4.19. Application of Fall-Away Covenants........................ 64
Section 4.20. Impairment of Security Interest........................... 64
Section 4.21. Security Interest......................................... 65
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.................. 65
Section 5.02. Successor Corporation Substituted......................... 66
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default......................................... 66
Section 6.02. Acceleration.............................................. 68
Section 6.03. Other Remedies............................................ 69
Section 6.04. Waiver of Existing Defaults............................... 69
Section 6.05. Control by Majority....................................... 69
Section 6.06. Limitation on Suits....................................... 69
Section 6.07. Rights of Holders of Notes to Receive Payment............. 70
Section 6.08. Collection Suit by Trustee................................ 70
Section 6.09. Trustee May File Proofs of Claim.......................... 70
Section 6.10. Priorities................................................ 71
Section 6.11. Undertaking for Costs..................................... 71
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee......................................... 72
Section 7.02. Rights of Trustee......................................... 73
Section 7.03. Individual Rights of Trustee.............................. 73
Section 7.04. Trustee's Disclaimer...................................... 74
Section 7.05. Notice of Defaults........................................ 74
Section 7.06. Reports by Trustee to Holders of the Notes................ 74
Section 7.07. Compensation and Indemnity................................ 74
Section 7.08. Replacement of Trustee.................................... 75
Section 7.09. Successor Trustee by Merger, etc.......................... 76
Section 7.10. Eligibility; Disqualification............................. 76
Section 7.11. Preferential Collection of Claims Against the Issuers..... 77
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance............................................. 77
Section 8.02. Legal Defeasance and Discharge............................ 77
Section 8.03. Covenant Defeasance....................................... 78
Section 8.04. Conditions to Legal or Covenant Defeasance................ 78
Section 8.05. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions............... 80
Section 8.06. Repayment to Issuers...................................... 80
Section 8.07. Reinstatement............................................. 80
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes....................... 81
Section 9.02. With Consent of Holders of Notes.......................... 82
Section 9.03. Compliance with Trust Indenture Act....................... 83
Section 9.04. Revocation and Effect of Consents......................... 83
Section 9.05. Notation on or Exchange of Notes.......................... 83
Section 9.06. Trustee to Sign Amendments, etc........................... 84
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Unconditional Guarantee................................... 84
Section 10.02. Limitations on this Guarantee............................. 85
Section 10.03. Execution and Delivery of this Guarantee.................. 85
Section 10.04. Release of Guarantor...................................... 86
Section 10.05. Waiver of Subrogation..................................... 86
Section 10.06. Immediate Payment......................................... 87
Section 10.07. Obligations Continuing.................................... 87
Section 10.08. Obligations Reinstated.................................... 87
Section 10.09. Obligations Not Affected.................................. 87
Section 10.10. Waiver.................................................... 87
Section 10.11. No Obligation To Take Action Against Either Issuer........ 88
Section 10.12. Dealing With The Company and Others....................... 88
Section 10.13. Default and Enforcement................................... 88
Section 10.14. Amendment, Etc............................................ 89
Section 10.15. Acknowledgement........................................... 89
Section 10.16. Costs and Expenses........................................ 89
Section 10.17. No Waiver; Cumulative Remedies............................ 89
Section 10.18. Effect of Offset or Counterclaim.......................... 89
Section 10.19. Guarantee in Addition to Other Obligations................ 89
Section 10.20. Severability.............................................. 89
Section 10.21. Successors and Assigns.................................... 90
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ARTICLE 11
SECURITY
Section 11.01. Security.................................................. 90
Section 11.02. Recording and Opinions.................................... 90
Section 11.03. Release of Collateral..................................... 91
Section 11.04. Authorization of Actions To Be Taken by the Trustee....... 91
Section 11.05. Acknowledgment that Collateral Secures the Other Notes.... 92
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.............................. 92
Section 12.02. Notices................................................... 92
Section 12.03. Communication by Holders of Notes with Other Holders
of Notes............................................... 93
Section 12.04. Certificate and Opinion as to Conditions Precedent........ 93
Section 12.05. Statements Required in Certificate or Opinion............. 94
Section 12.06. Rules by Trustee and Agents............................... 94
Section 12.07. No Personal Liability of Directors, Officers,
Employees, Members and Stockholders.................... 94
Section 12.08. Governing Law............................................. 94
Section 12.09. No Adverse Interpretation of Other Agreements............. 95
Section 12.10. Successors................................................ 95
Section 12.11. Severability.............................................. 95
Section 12.12. Counterpart Originals..................................... 95
Section 12.13. Table of Contents, Headings, etc.......................... 95
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture................... 95
Section 13.02. Application of Trust Money................................ 96
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF GUARANTEE
Exhibit F FORM OF MIRROR NOTE
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INDENTURE dated as of March 17, 1999 among Charter Communications
Holdings, LLC, a Delaware limited liability company (the "Company"), Charter
Communications Holdings Capital Corporation, a company incorporated under the
laws of Delaware ("Charter Capital" and together with the Company, the
"Issuers"), Marcus Cable Holdings, LLC, a Delaware limited liability company, as
guarantor (the "Guarantor"), and Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee").
The Issuers, the Guarantor and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 9.92% Senior Discount Notes due 2011 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in an initial denomination equal
to the outstanding principal amount at maturity of the Notes sold in reliance on
Rule 144A.
"Accreted Value" is defined to mean, for any specific date, the
amount calculated pursuant to (i), (ii), (iii) or (iv) for each $ 1,000 of
principal amount at maturity of the Notes:
(i) if the specified date occurs on one or more of the following
dates (each a "Semi-Annual Accrual Date"), the Accreted Value will equal
the amount set forth below for such Semi-Annual Accrual Date:
Semi Annual
Accrual Date Accreted Value
------------ --------------
Issue Date $ 613.94
October 1, 1999 646.88
April 1, 2000 678.96
October 1, 2000 712.64
April 1, 2001 747.99
October 1, 2001 785.09
April 1, 2002 824.03
October 1, 2002 864.90
April 1, 2003 907.80
October 1, 2003 952.82
April 1, 2004 $1,000.00
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(ii) if the specified date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) $613.94 and (b)
an amount equal to the product of (1) the Accreted Value for the first
Semi-Annual Accrual Date less $613.94 multiplied by (2) a fraction, the
numerator of which is the number of days from the Issue Date of the Notes
to the specified date, using a 360-day year of twelve 30-day months, and
the denominator of which is the number of days elapsed from the issue date
of the Notes to the first Semi-Annual Accrual Date, using a 360-day year
of twelve 30-day months;
(iii) if the specified date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such specified date and
(b) an amount equal to the product of (1) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for
the immediately preceding Semi-Annual Accrual Date multiplied by (2) a
fraction, the numerator of which is the number of days from the
immediately preceding Semi-Annual Accrual Date to the specified date,
using a 360-day year of twelve 30-day months, and the denominator of which
is 180; or
(iv) if the specified date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling, "controlled by" and "under common control
with " shall have correlative meanings.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Acquisition" means (a) an Investment by the Company or any of
the Company's Restricted Subsidiaries, or the Guarantor or any of the
Guarantor's Restricted Subsidiaries, as
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the case may be, in any other Person pursuant to which such Person shall become
a Restricted Subsidiary of the Company or any of the Company's Restricted
Subsidiaries, or the Guarantor or any of the Guarantor's Restricted
Subsidiaries, as the case may be, or shall be merged with or into the Company or
any of the Company's Restricted Subsidiaries, or the Guarantor or any of the
Guarantor's Restricted Subsidiaries, as the case may be, or (b) the acquisition
by the Company or any of the Company's Restricted Subsidiaries, or the Guarantor
or any of the Guarantor's Subsidiaries, as the case may be, of the assets of any
Person which constitute all or substantially all of the assets of such Person,
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets
or rights, other than sales of inventory in the ordinary course of
business consistent with past practices; provided that the sale,
conveyance or other disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries, taken as a whole and of
the Guarantor and its Restricted Subsidiaries, taken as a whole, shall be
governed by Section 4.16 and/or Section 5.01 and not by the provisions of
Section 4.11; and
(2) the issuance of Equity Interests by any of the Company's or the
Guarantor's Restricted Subsidiaries or the sale of Equity Interests in any
of the Company's or the Guarantor's Restricted Subsidiaries.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions that:
(a) involves assets having a fair market value of less than $100 million;
or (b) results in net proceeds to the Company, the Guarantor and their
Restricted Subsidiaries of less than $100 million;
(2) a transfer of assets (i) between or among the Company and its
Restricted Subsidiaries, (ii) between or among the Guarantor and its
Restricted Subsidiaries and (iii) from the Guarantor or any of its
Restricted Subsidiaries to any of the Company or its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary of the Company to the Company or to another Wholly Owned
Restricted Subsidiary of the Company, or an issuance of Equity Interests
by a Wholly Owned Restricted Subsidiary of the Guarantor to another Wholly
Owned Restricted Subsidiary of the Guarantor;
(4) a Restricted Payment that is permitted by Section 4.07 and a
Restricted Investment that is permitted by Section 4.08; and
(5) the incurrence of Permitted Liens and the disposition of assets
related to such Permitted Liens by the secured party pursuant to a
foreclosure.
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"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessee, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
state law of any jurisdiction relating to bankruptcy, insolvency, winding up,
liquidation, reorganization or relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as such term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition.
"Board of Directors" means the Board of Directors of the Company,
Charter Capital or the Guarantor, as the case may be, or any authorized
committee of the Board of Directors of the Company, Charter Capital or the
Guarantor, as the case may be.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company, Charter Capital or the
Guarantor, as the case may be, to have been duly adopted by the Board of
Directors of the Company, Charter Capital or the Guarantor, as the case may be,
and to be in full force and effect on the date of such certification and
delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Cable Related Business" means the business of owning cable
television systems and businesses ancillary, complementary and related thereto.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
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(4) any other interest (other than any debt obligation) or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Capital Stock Sale Proceeds " means the aggregate net cash proceeds
(including the fair market value of the non-cash proceeds, as determined by an
independent appraisal firm) received by the Company or the Guarantor since the
date of this Indenture (x) as a contribution to the common equity capital or
from the issue or sale of Equity Interests of the Company or the Guarantor
(other than Disqualified Stock) or (y) from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities
of the Company or the Guarantor that have been converted into or exchanged for
such Equity Interests (other than Equity Interests (or Disqualified Stock or
debt securities) sold to a Subsidiary of the Company or the Guarantor).
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged
in support thereof) having maturities of not more than twelve months from
the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of twelve months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any domestic commercial bank having combined
capital and surplus in excess of $500 million and a Xxxxxxxx Bank Watch
Rating at the time of acquisition of "B" or better;
(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having a rating of at least "P-1" from Xxxxx'x
or at least "A-1" from S&P and in each case maturing within twelve months
after the date of acquisition;
(6) corporate debt obligations maturing within twelve months after
the date of acquisition thereof, rated at the time of acquisition at least
"Aaa" or "P-1" by Xxxxx'x or "AAA" or "A-1" by S&P;
(7) auction-rate preferred stocks of any corporation maturing not
later than 45 days after the date of acquisition thereof, rated at the
time of acquisition at least "Aaa" by Xxxxx'x or "AAA" by S&P;
(8) securities issued by any state, commonwealth or territory of the
United States, or by any political subdivision or taxing authority
thereof, maturing not later than six months after the date of acquisition
thereof, rated at the time of acquisition at least "A" by Xxxxx'x or S&P;
and
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(9) money market or, mutual funds, at least 90% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (1)
through (8) of this definition.
"Cedel" means Cedel Bank, SA.
"Change of Control" means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Subsidiaries, taken as a whole, or the Guarantor and its Subsidiaries,
taken as a whole, to any "person" (as such term is used in Section
13(d)(3) of the Exchange Act) other than the Principal or a Related Party
of the Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company or the Guarantor;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principal and Related Parties
and any entity formed for the purpose of owning Capital Stock of the
Company, becomes the Beneficial Owner, directly or indirectly, of more
than 35% of the Voting Stock of the Company or the Guarantor, measured by
voting power rather than number of shares, unless the Principal or a
Related Party Beneficially Owns, directly or indirectly, a greater
percentage of Voting Stock of the Company or the Guarantor, as the case
may be, measured by voting power rather than the number of shares, than
such person;
(4) after the Company's initial public offering, the first day on
which a majority of the members of the Board of Directors of the Company
are not Continuing Directors; or
(5) the Company or the Guarantor consolidates with, or merges with
or into, any Person, or any Person consolidates with, or merges with or
into, the Company or the Guarantor, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company or
the Guarantor is converted into or exchanged for cash, securities or other
property, other than any such transaction where the Voting Stock of the
Company or the Guarantor outstanding immediately prior to such transaction
is converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person constituting a majority of
the outstanding shares of such Voting Stock of such surviving or
transferee Person immediately after giving effect to such issuance.
"Charter Capital" has the meaning assigned to it in the preamble to
this Indenture.
"Collateral" means the Mirror Note and other collateral which
secures the obligations under the Notes pursuant to the Pledge Documents and the
collateral which secures the obligations under the Mirror Note.
"Commission" or "SEC" means the Securities and Exchange Commission.
"Company" has the meaning assigned to it in the preamble to this
Indenture.
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"Company Preferred Stock" means the 10% cumulative convertible
redeemable preferred stock of the Company with an aggregate liquidation value of
$25 million.
"Consolidated EBITDA" means with respect to any Person, for any
period, the net income of such Person and its Restricted Subsidiaries for such
period plus, to the extent such amount was deducted in calculating such net
income:
(1) Consolidated Interest Expense;
(2) income taxes;
(3) depreciation expense;
(4) amortization expense;
(5) all other non-cash items, extraordinary items, nonrecurring and
unusual items and the cumulative effects of changes in accounting
principles reducing such net income, less all non-cash items,
extraordinary items, nonrecurring and unusual items and cumulative effects
of changes in accounting principles increasing such net income, all as
determined on a consolidated basis for the Company and its Restricted
Subsidiaries in conformity with GAAP;
(6) amounts actually paid during such period pursuant to a deferred
compensation plan; and
(7) for purposes of Section 4.10 only, Management Fees;
provided that Consolidated EBITDA shall not include:
(x) the net income (or net loss) of any Person that is not a
Restricted Subsidiary ("Other Person"), except (I) with respect to net
income, to the extent of the amount of dividends or other distributions
actually paid to such Person or any of its Restricted Subsidiaries by such
Other Person during such period and (II) with respect to net losses, to
the extent of the amount of investments made by such Person or any
Restricted Subsidiary of such Person in such Other Person during such
period;
(y) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (3) of Section 4.07 (and in
such case, except to the extent includable pursuant to clause (x) above),
the net income (or net loss) of any Other Person accrued prior to the date
it becomes a Restricted Subsidiary or is merged into or consolidated with
such Person or any Restricted Subsidiaries or all or substantially all of
the property and assets of such Other Person are acquired by such Person
or any of its Restricted Subsidiaries; and
(z) the net income of any Restricted Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable
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to such Restricted Subsidiary (other than any agreement or instrument
evidencing Indebtedness or Preferred Stock outstanding on the date of this
Indenture or incurred or issued thereafter in compliance with Section
4.10; provided that the terms of any such agreement restricting the
declaration and payment of dividends or similar distributions apply only
in the event of a default with respect to a financial covenant or a
covenant relating to payment (beyond any applicable period of grace)
contained in such agreement or instrument and provided such terms are
determined by such Person to be customary in comparable financings and
such restrictions are determined by the Company not to materially affect
the Company's ability to make principal or interest payments on the Notes
when due).
"Consolidated Indebtedness" means, with respect to any Person as of
any date of determination, the sum, without duplication, of:
(1) the total amount of outstanding Indebtedness of such Person and
its Restricted Subsidiaries, plus
(2) the total amount of Indebtedness of any other Person that has
been Guaranteed by the referent Person or one or more of its Restricted
Subsidiaries (excluding Indebtedness of the Company or any of its
Subsidiaries guaranteed by the Guarantor and any of its Subsidiaries which
Indebtedness has been previously counted for the purposes of this
definition), plus
(3) the aggregate liquidation value of all Disqualified Stock of
such Person and all preferred stock of Restricted Subsidiaries of such
Person, in each case, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization or original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations);
and
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, and
(3) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such Guarantee or Lien is called upon);
excluding, however, any amount of such interest of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the calculation of
Consolidated EBITDA pursuant to clause (z) of the definition thereof (but only
in the same proportion as the net income of such Restricted Subsidiary is
15
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excluded from the calculation of Consolidated EBITDA pursuant to clause (z) of
the definition thereof), in each case, on a consolidated basis and in accordance
with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of this
Indenture; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election or whose
election or appointment was previously so approved.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 or such other address as to which the
Trustee may give notice to the Issuers.
"Credit Facilities" means, with respect to the Company, the
Guarantor and/or their respective Restricted Subsidiaries, one or more debt
facilities or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Global Notes, the Person
specified in Section 2.03 as the Depositary with respect to the Notes, and any
and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, or transfer,
lease conveyance or other disposition of all or substantially all of such
Person's assets or Capital Stock.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company or the Guarantor, as the
case
16
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may be, to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company or the Guarantor, as the case may
be, may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any private or underwritten public offering
of Qualified Capital Stock of the Company of which the gross proceeds to the
Company are at least $25 million.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f).
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries in
existence on the Issue Date, until such amounts are repaid.
"Full Accretion Date" means, April 1, 2004, the first date on which
the Accreted Value of the Notes has accreted to an amount equal to the principal
amount at maturity of the Notes.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
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"Guarantee" or "guarantee" means a guarantee other than by
endorsement of negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness, measured
as the lesser of the aggregate outstanding amount of the Indebtedness so
guaranteed and the face amount of the Guarantee.
"Guarantor" has the meaning assigned to it in the preamble to this
Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements;
(2) interest rate option agreements, foreign currency exchange
agreements, foreign currency swap agreements; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in interest and currency exchange rates.
"Holder" means a holder of the Notes.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) in respect of the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable; or
(6) representing the notional amount of any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person.
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The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(2) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is not also a QIB.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Investment Grade Rating" means a rating equal to or higher than
Baa3 (or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"Issue Date" means March 17, 1999.
"Issuers" has the meaning assigned to it in the preamble to this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Issuers and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Leverage Ratio " means, as of any date, the ratio of:
(1) the combined Consolidated Indebtedness of the Company and the
Guarantor on such date to
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(2) the aggregate amount of combined Consolidated EBITDA for the
Company and the Guarantor for the most recently ended fiscal quarter for
which internal financial statements are available multiplied by four (the
"Reference Period").
In addition to the foregoing, for purposes of this definition,
"Consolidated EBITDA" shall be calculated on a pro forma basis after giving
effect to
(1) the issuance of the Notes;
(2) the incurrence of the Indebtedness or the issuance of the
Disqualified Stock or other Preferred Stock of a Restricted Subsidiary
(and the application of the proceeds therefrom) giving rise to the need to
make such calculation and any incurrence or issuance (and the application
of the proceeds therefrom) or repayment of other Indebtedness or
Disqualified Stock or other Preferred Stock of a Restricted Subsidiary,
other than the incurrence or repayment of Indebtedness for ordinary
working capital purposes, at any time subsequent to the beginning of the
Reference Period and on or prior to the date of determination, as if such
incurrence (and the application of the proceeds thereof), or the
repayment, as the case may be, occurred on the first day of the Reference
Period; and
(3) any Dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted
Subsidiaries (including any person that becomes a Restricted Subsidiary as
a result of such Asset Acquisition) incurring, assuming or otherwise
becoming liable for or issuing Indebtedness, Disqualified Stock or
Preferred Stock) made on or subsequent to the first day of the Reference
Period and on or prior to the date of determination, as if such
Disposition or Asset Acquisition (including the incurrence, assumption or
liability for any such Indebtedness, Disqualified Stock or Preferred Stock
and also including any Consolidated EBITDA associated with such Asset
Acquisition, including any cost savings adjustments in compliance with
Regulation S-X promulgated by the Commission) had occurred on the first
day of the Reference Period.
For purposes of this definition and calculating the combined
Consolidated Indebtedness for the Company and the Guarantor, in no case will the
combined Consolidated Indebtedness for the Company include (x) Consolidated
Indebtedness of the Company which has already been counted as part of the
Consolidated Indebtedness of the Guarantor and (y) Consolidated Indebtedness of
the Guarantor which has already been counted as the Consolidated Indebtedness of
the Company. Further, for purposes of this definition and calculating combined
Consolidated EBITDA for the Company and the Guarantor, in no case will combined
Consolidated EBITDA for the Company and the Guarantor include (x) Consolidated
EBITDA of the Company which has already been counted as part of the Consolidated
EBITDA of the Guarantor and (y) Consolidated EBITDA of the Guarantor which has
already been counted as the Consolidated EBITDA of the Company.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and
20
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any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
"Management Fees" means the fee payable to Charter Communications,
Inc. pursuant to the management agreement between Charter Communications, Inc.
and Charter Communication Operating LLC, as such agreement exists on the Issue
Date, including any amendment or replacement thereof, provided that any such
amendment or replacement is not more disadvantageous to the Holders of the Notes
in any material respect from such management agreement existing on the Issue
Date.
"Marcus Combination" means the consolidation or merger of the
Guarantor with and into the Company or any of its Restricted Subsidiaries.
"Mirror Note" means the senior note of the Guarantor due April 1,
2007 issued to the Company in the principal amount of $1,548,630,855 in the form
attached to this Indenture as Exhibit F, and which will be secured by the pledge
by the Guarantor of all of the Capital Stock of Marcus Cable Company LLC, a
wholly owned Subsidiary of the Guarantor.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries or by the Guarantor or any of its
Restricted Subsidiaries, as the case may be, in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof or taxes paid or payable as a
result thereof (including amounts distributable in respect of owners', partners'
or members' tax liabilities resulting from such sale), in each case after taking
into account any available tax credits or deductions and any tax sharing
arrangements and amounts required to be applied to the repayment of
Indebtedness.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries, nor the Guarantor or any of its Restricted Subsidiaries, as
the case may be, (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness (other than the Notes) of the Company
or any of its Restricted Subsidiaries, or the Guarantor or any of its
Restricted Subsidiaries, as the case may be, to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and
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(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries or the Guarantor or any of its Restricted
Subsidiaries, as the case may be.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company, Charter Capital or the Guarantor, as the case may be, by two Officers
of the Company, Charter Capital or the Guarantor, as the case may be, one of
whom must be the principal executive officer, the chief financial officer or the
treasurer of the Company, Charter Capital or the Guarantor, as the case may be,
that meets the requirements of Section 12.05.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05. The counsel may be an employee of or counsel to the Issuers, the
Guarantor, any Subsidiary of the Issuers or the Guarantor or the Trustee.
"Other Notes" means the 8.25% Senior Notes due 2007 of the Issuers
in an aggregate principal amount not to exceed the principal amount issued on
the Issue Date, and the 8.625% Senior Notes due 2009 of the Issuers in an
aggregate principal amount not to exceed the principal amount issued on the
Issue Date.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear and Cedel).
"Permitted Investments" means:
(1) any Investment by the Company in a Restricted Subsidiary of the
Company, or any Investment by the Guarantor in a Restricted Subsidiary of
the Guarantor, the Company or a Restricted Subsidiary of the Company, or
any Investment by a Restricted Subsidiary of the Company or the Guarantor
in the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
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(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged or consolidated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the
Company;
(4) any Investment by the Guarantor or any Restricted Subsidiary of
the Guarantor in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Guarantor; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Guarantor or a Restricted Subsidiary of the
Guarantor;
(5) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.11;
(6) Investment made out of the net cash proceeds of the issue and
sale (other than to a Subsidiary of the Company or the Guarantor) of
Equity Interests (other than Disqualified Stock) of the Company or the
Guarantor to the extent that such net cash proceeds have not been applied
to make a Restricted Payment or to effect other transactions pursuant to
Section 4.07 or to the extent such net cash proceeds have not been used to
incur Indebtedness pursuant to clause (10) of Section 4.10;
(7) Investments in Productive Assets having an aggregate fair market
value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (7) since the Issue
Date, not to exceed $150 million; provided that either the Company or any
of its Restricted Subsidiaries or the Guarantor or any of its Restricted
Subsidiaries, after giving effect to such Investments, will own at least
20% of the Voting Stock of such Person;
(8) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (8) since the date of
this Indenture, not to exceed $50 million;
(9) Investments in customers and suppliers in the ordinary course of
business which either (A) generate accounts receivable or (B) are accepted
in settlement of bona fide disputes; and
(10) the Company's investment in the Guarantor, as outstanding on
the Issue Date.
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"Permitted Liens" means:
(1) Liens on the assets of the Company or the Guarantor securing
Indebtedness and other Obligations under clause (1) of Section 4.10;
(2) Liens in favor of the Company and the Guarantor and Liens on the
assets of any Restricted Subsidiary of the Company or the Guarantor in
favor of any other Restricted Subsidiary of the Company or the Guarantor;
(3) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Company or the Guarantor;
provided that such Liens were in existence prior to the contemplation of
such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or the
Guarantor;
(4) Liens on property existing at the time of acquisition thereof by
the Company or the Guarantor; provided that such Liens were in existence
prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(6) purchase money mortgages or other purchase money liens
(including without limitation any Capital Lease Obligations) incurred by
the Company or the Guarantor upon any fixed or capital assets acquired
after the Issue Date or purchase money mortgages (including without
limitation Capital Lease Obligations) on any such assets, whether or not
assumed, 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 of the assets of the Company or the Guarantor, except the asset
so developed, constructed, or acquired, and directly related assets such
as enhancements and modifications thereto, substitutions, replacements,
proceeds (including insurance proceeds), products, rents and profits
thereof, and (ii) such mortgage or lien secures the obligation to pay the
purchase price of such asset, interest thereon and other charges, costs
and expenses (including, without limitation, the cost of design,
development, construction, acquisition, transportation, installation,
improvement, and migration) and incurred in connection therewith (or the
obligation under such Capital Lease Obligation) only;
(7) Liens existing on the date of this Indenture (other than in
connection with the Credit Facilities);
(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(9) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary
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course of business and with respect to amounts not yet delinquent or being
contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made;
(10) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(11) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligation, bankers'
acceptance, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred
in the ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(12) easements, rights-of-way, municipal and zoning ordinances and
similar charges, encumbrances, title defects or other irregularities that
do not materially interfere with the ordinary course of business of the
Company or the Guarantor or any of their Restricted Subsidiaries;
(13) Liens of franchisors or other regulatory bodies arising in the
ordinary course of business;
(14) Liens arising from filing Uniform Commercial Code financing
statements regarding leases or other Uniform Commercial Code financing
statements for precautionary purposes relating to arrangements not
constituting Indebtedness;
(15) Liens arising from the rendering of a final judgment or order
against the Company, the Guarantor or any of their Restricted Subsidiaries
that does not give rise to an Event of Default; (16) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the
products and proceeds thereof;
(17) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are within the general parameters customary
in the industry and incurred in the ordinary course of business, in each
case, securing Indebtedness under Hedging Obligations and forward
contracts, options, future contracts, future options or similar agreements
or arrangements designed solely to protect the Company, the Guarantor or
any of their respective Restricted Subsidiaries from fluctuations in
interest rates, currencies or the price of commodities;
(18) Liens consisting of any interest or title of licensor in the
property subject to a license;
(19) Liens on the Capital Stock of Unrestricted Subsidiaries;
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(20) Liens arising from sales or other transfers of accounts
receivable which are past due or otherwise doubtful of collection in the
ordinary course of business;
(21) Liens incurred in the ordinary course of business of the
Company or the Guarantor, with respect to obligations which in the
aggregate do not exceed $50 million at any one time outstanding;
(22) Liens in favor of the Trustee arising under the provisions in
this Indenture and in the indentures relating to the Other Notes, in each
case under Section 7.07; and
(23) Liens in favor of the Trustee for its benefit and the benefit
of the Holders and the holders of the Other Notes, as their respective
interests appear.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries, or the Guarantor or any of its
Restricted Subsidiaries, as the case may be, issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Restricted Subsidiaries,
or the Guarantor or any of its Restricted Subsidiaries, respectively (other than
intercompany Indebtedness); provided that unless permitted otherwise by this
Indenture, no Indebtedness of the Company or any of its Restricted Subsidiaries,
or the Guarantor or any of its Restricted Subsidiaries, may be issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund Indebtedness of the Guarantor or any of its
Restricted Subsidiaries, or the Company or any of its Restricted Subsidiaries,
respectively; provided, further, that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest and premium, if
any, on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes or the Guarantee, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes or the Guarantee, as the
case may be, on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by any of
its Restricted Subsidiaries or the Guarantor or by any of its Restricted
Subsidiaries who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
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"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Pledge Documents" means, collectively, this Indenture and all
pledge agreements or other instruments evidencing or creating any security
interests in favor of the Trustee in all or any portion of the Collateral, in
each case as amended, supplemented or modified from time to time in accordance
with their terms and the terms of this Indenture.
"Principal" means Xxxx X. Xxxxx.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i)(A) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Productive Assets" means assets (including assets of a referent
Person owned directly or indirectly through ownership of Capital Stock) of a
kind used or useful in the Cable Related Business.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Rating Agencies" means Xxxxx'x and S&P.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement dated as of the Issue Date among the Issuers, the Guarantor and
the initial purchasers named therein with respect to the Notes issued on the
Issue Date.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in an initial
denomination equal to the outstanding principal amount at maturity of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means:
(1) the spouse or an immediate family member, estate or heir of the
Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of the
Principal and/or such other Persons referred to in the immediately
preceding clause (1).
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) with
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direct responsibility for the administration of this Indenture 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 Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard & Poor's Ratings Service, a division of the
XxXxxx-Xxxx Companies, Inc. or any successor to the rating agency business
thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the
Company which is a "Significant Subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Exchange Act.
"Special Interest" has the meaning set forth in the Registration
Rights Agreement.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness on the Issue Date, or, if none, the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which
at least 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
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owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof) and,
in the case of any such entity of which 50% of the total voting power of
shares of Capital Stock is so owned or controlled by such Person or one or
more of the other Subsidiaries of such Person, such Person and its
Subsidiaries also has the right to control the management of such entity
pursuant to contract or otherwise; and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Tax" shall mean any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, then "TIA" means, to the extent required by
such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means Xxxxxx Trust and Savings Bank until a successor
replaces Xxxxxx Trust and Savings Bank in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do
not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company or the
Guarantor that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
or the Guarantor or any Restricted Subsidiary of the Guarantor unless the
terms of any such agreement, contract, arrangement or understanding are no
less favorable to the Company or any Restricted Subsidiary or the
Guarantor or any Restricted Subsidiary of the Guarantor than those that
might be obtained at the time from Persons who are not Affiliates of the
Company or the Guarantor unless such terms constitute Investments
permitted by the covenant described above under Section 4.08;
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(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries, nor the Guarantor nor any of its Restricted
Subsidiaries, has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified
levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries or the Guarantor or any of its Restricted
Subsidiaries; and
(5) has at least one director on its board of directors that is not
a director or executive officer of the Company or any of its Restricted
Subsidiaries, or of the Guarantor or any of its Restricted Subsidiaries,
or has at least one executive officer that is not a director or executive
officer of the Company or any of its Restricted Subsidiaries, or of the
Guarantor or any of its Restricted Subsidiaries.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the board
of directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person and/or by one or more Wholly Owned
Restricted Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction" 4.13
"Asset Sale Offer" 3.09
"Authentication Order" 2.02
"Change of Control Offer" 4.16
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Defined in
Term Section
---- -------
"Change of Control Payment" 4.16
"Change of Control Payment Date" 4.16
"Covenant Defeasance" 8.01
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.12
"incur" 4.09
"Legal Defeasance" 8.01
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Default" 6.01
"Permitted Debt" 4.10
"Preferred Stock Financing" 4.10
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
"Subordinated Debt Financing" 4.10
"Subordinated Notes" 4.10
"Subsidiary Guarantee" 4.17
"Suspended Covenants" 4.19
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Issuers and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time;
(g) references to any statute, law, rule or regulation shall be
deemed to refer to the same as from time to time amended and in effect and
to any successor statute, law, rule or regulation; and
(h) references to any contract, agreement or instrument shall mean
the same as amended, modified, supplemented or amended and restated from
time to time, in each case, in accordance with any applicable restrictions
contained in this Indenture.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 principal amount at maturity and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
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(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount at maturity of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount at maturity of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount at maturity of outstanding Notes represented thereby
shall be made by the Trustee or the custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by
Section 2.06.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for each Issuer by manual or
facsimile signature. The Guarantor shall execute the Guarantee in the manner set
forth in Article 10.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by an
Officer of each of the Issuers (an "Authentication Order"), authenticate Notes
for original issue in the aggregate principal amount at maturity of
$1,475,000,000. The aggregate principal amount at maturity of Notes outstanding
at any time may not exceed such amount except as provided in Section 2.07. On
the Issue Date, the Issuers will issue $1,475,000,000 aggregate principal amount
at maturity of Notes.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
Section 2.03. Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be pre-
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sented for payment ("Paying Agent"). The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Issuers may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Issuers may change any Paying Agent or Registrar without
notice to any Holder. The Issuers shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Issuers fail
to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Issuers or any of their Subsidiaries may act as Paying
Agent or Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
Accreted Value, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Issuers in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Issuers at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Issuers or a Subsidiary) shall have no further
liability for the money. If the Issuers or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Issuers, the Trustee shall serve as Paying Agent for
the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Company for Definitive Notes if:
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(i) the Issuers deliver to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Issuers within
120 days after the date of such notice from the Depositary; or
(ii) the Issuers in their sole discretion determine that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes
and deliver a written notice to such effect to the Trustee; or
(iii) there shall have occurred and be continuing a Default or Event
of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f).
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either:
(A)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary
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to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(A)(2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account
to be credited with such increase; or
(B)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued
a Definitive Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(B)(2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Issuers in accordance
with Section 2.06(f), the requirements of this Section 2.06(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount at maturity of the relevant Global Note(s)
pursuant to Section 2.06(h).
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
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(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Issuers shall issue (and, in the case of the Guarantee, the Guarantor shall
issue) and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted Global Notes (with
corresponding Guarantees) in an aggregate principal amount at maturity equal to
the aggregate principal amount at maturity of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such
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beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of
a Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Issuers or any of their Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount at maturity of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h), and the Issuers shall execute (and, in the case of the Guarantee,
the Guarantor shall execute) and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note
(with its corresponding Guarantee) in the appropriate principal amount.
Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such
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Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of
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the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause
the aggregate principal amount at maturity of the applicable Global Note
to be reduced accordingly pursuant to Section 2.06(h), and the Issuers
shall execute (and, in the case of the Guarantee, the Guarantor shall
execute) and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note (with its corresponding
Guarantee) in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
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(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount at maturity of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a broker-dealer pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act
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and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount at
maturity of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount
at maturity of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue (and, in the case of the Guarantee, the
Guarantor shall issue) and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes (with corresponding Guarantees) in an aggregate
principal amount at maturity equal to the principal amount at maturity of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a cer-
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tificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a broker-dealer pursuant
to the Exchange Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Issuers to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
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(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount at maturity equal to the principal amount at maturity
of the beneficial interests in the Restricted Global Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal that
(x) they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuers, and accepted for exchange in the Exchange Offer and
(ii) Definitive Notes in an aggregate principal amount at maturity equal to the
principal amount at maturity of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount at maturity of the
applicable Restricted Global Notes to be reduced accordingly, and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii)
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or (f) to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount at maturity of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers
shall execute (and in the case of the Guarantee, the Guarantor shall
execute) and the Trustee shall authenticate Global Notes and Definitive
Notes (each with corresponding Guarantees) upon the Issuers' order or at
the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.11, 4.16 and 9.05).
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(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers (and the Guarantor, in the
case of the Guarantee), evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes
(each with a corresponding Guarantee) surrendered upon such registration
of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note
so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Issuers may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Issuers shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Issuers shall issue (and, in the case of the
Guarantee, the Guarantor shall issue) and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note (with a
corresponding Guarantee) if the Trustee's requirements are met. If required by
the Trustee or the Issuers, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Issuers may charge for their
expenses in replacing a Note.
Every replacement Note (with corresponding Guarantee) is an
additional obligation of the Issuers and the Guarantor and shall be entitled to
all of the benefits of this Indenture equally and proportionately with all other
Notes (with corresponding Guarantees) duly issued hereunder.
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Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions, and those described in this Section
as not outstanding. Except as set forth in Section 2.09, a Note does not cease
to be outstanding because either of the Issuers, the Guarantor or an Affiliate
of the Issuers or the Guarantor holds the Note; however, Notes held by an
Issuer, the Guarantor or a Subsidiary of an Issuer or the Guarantor shall not be
deemed to be outstanding for purposes of Section 3.07(b).
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Accreted Value of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than an Issuer, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
at maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by an Issuer, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with an Issuer, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare (and, in the case of the Guarantee, the Guarantor may
prepare) and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes (with corresponding Guarantees). Temporary Notes
shall be substantially in the form of certificated Notes but may have variations
that the Issuers considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers
shall prepare (and, in the case of the Guarantee, the Guarantor shall prepare)
and the Trustee shall authenticate definitive Notes (with corresponding
Guarantees) in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of
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transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy canceled Notes. Certification of the
destruction of all canceled Notes shall be delivered to the Issuers. The Issuers
may not issue new Notes to replace Notes that they have paid or that have been
delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01. The Issuers shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Issuers shall fix or cause to be fixed
each such special record date and payment date; provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Issuers (or, upon the written request of the Issuers, the Trustee in the name
and at the expense of the Issuers) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07, it shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the Accreted Value of
Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the Accreted Value thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 principal amount at
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maturity or whole multiples of $1,000 principal amount at maturity; except that
if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000 principal
amount at maturity, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09, at least 30 days but not
more than 60 days before a redemption date, the Issuers shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
Accreted Value or the principal amount at maturity of such Note to be
redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount at maturity equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes called for redemption ceases to accrue, or the
Accreted Value on the Notes ceases to increase, as the case may be, on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at their expense; provided, however, that
each of the Issuers shall have delivered to the Trustee, at least 45 days prior
to the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
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Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price.
At or prior to 10:00 a.m., New York City time, on the redemption
date, the Issuers shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Issuers any money deposited with the Trustee or the Paying Agent by the
Issuers in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Issuers to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers shall
issue and, upon the Issuers' written request, the Trustee shall authenticate for
the Holder at the expense of the Issuers a new Note equal in principal amount at
maturity to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Issuers shall not have the option to redeem the Notes pursuant to this Section
3.07 prior to April 1, 2004. Thereafter, the Issuers shall have the option to
redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount at maturity) set forth below plus accrued and unpaid interest thereon, if
any, to the applicable redemption date, if redeemed during the twelve-month
period beginning on April 1 of the years indicated below:
Year Percentage
---- ----------
2004 104.960%
2005 103.307%
2006 101.653%
2007 and thereafter 100.000%
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(b) Notwithstanding the provisions of clause (a) of this Section
3.07, at any time prior to April 1, 2002, the Issuers may, on any one or more
occasions, redeem up to 35% of the aggregate principal amount at maturity of the
Notes originally issued under this Indenture on a pro rata basis (or nearly as
pro rata as practicable) at a redemption price of 109.92% of the Accreted Value
thereof, plus, after the Full Accretion Date, accrued and unpaid interest to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided that
(1) at least 65% of the aggregate principal amount at maturity of
Notes originally issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held
by the Company and its Subsidiaries and the Guarantor and its
Subsidiaries); and
(2) the redemption must occur within 60 days of the date of the
closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06.
Section 3.08. Mandatory Redemption.
Except as otherwise provided in Section 4.11 or Section 4.16 below,
the Issuers shall not be required to make mandatory redemption payments with
respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that the Issuers shall be required to commence an offer
to all Holders to purchase Notes pursuant to Section 4.11 (an "Asset Sale
Offer"), they shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Issuers shall purchase the principal amount at maturity of Notes
required to be purchased pursuant to Section 4.11 (the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no Special Interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer the Issuers shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
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(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.11 and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Issuers default in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer or may elect to have Notes purchased in integral
multiples of $1,000 principal amount at maturity only;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Issuers, a
depositary, if appointed by the Issuers, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Issuers, the depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate Accreted Value of Notes surrendered by
Holders exceeds the Offer Amount, the Issuers shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuers so that only Notes in denominations of $1,000
principal amount at maturity, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Issuers shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Issuers in accordance
with the terms of this Section 3.09. The Issuers, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Issuers for purchase, and the Issuers shall promptly issue a new Note, and
the Trustee, upon written request
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from the Issuers shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount at maturity equal to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Issuers to the Holder thereof. The Issuers shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Issuers shall pay or cause to be paid the Accreted Value of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Accreted Value, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Issuers
or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due
date money deposited by the Issuers in immediately available funds and
designated for and sufficient to pay all Accreted Value, premium, if any, and
interest then due. The Issuers shall pay all Special Interest, if any, in the
same manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Issuers shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; they shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuers in respect of the Notes and this Indenture may be
served. The Issuers shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Issuers shall give prompt
written notice to
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the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Issuers hereby designate the Xxxxxx Trust Company of New York,
an affiliate of the Trustee, as one such office or agency of the Issuers in
accordance with Section 2.03.
Section 4.03. Reports.
Whether or not required by the Commission, so long as any Notes are
outstanding, the Issuers and the Guarantor shall furnish to the Holders of
Notes, within the time periods specified in the Commission's rules and
regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Issuers and the Guarantor were required to file such Forms,
including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual information
only, a report on the annual financial statements by the Issuers'
certified independent accountants and the Guarantor's certified
independent accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Issuers or the Guarantor were required to
file such reports.
If the Issuers or the Guarantor has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, of the financial condition and
results of operations of the Issuers or the Guarantor, as the case may be, and
their respective Restricted Subsidiaries separate from the financial condition
and results of operations of the Unrestricted Subsidiaries of the Issuers or the
Guarantor, as the case may be.
In addition, whether or not required by the Commission, the Issuers
and the Guarantor shall file a copy of all of the information and reports
referred to in clauses (1) and (2) above with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.
Section 4.04. Compliance Certificate.
(a) Each of the Company and the Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries and the Guarantor and its Subsidiaries, respectively, during the
preceding fiscal year have been made under the supervision of the signing
Officers with a view to determining whether the Company or the Guarantor, as the
case may be, has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company or the
Guarantor, as the case may be, has kept, observed, performed and fulfilled each
and every covenant contained in this Inden-
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ture and is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company or the
Guarantor, as the case may be, is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company or the Guarantor, as the
case may be, is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants or the
Guarantor's independent public accountants, as the case may be, (each of whom
shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company or
the Guarantor, as the case may be, has violated any provisions of Article 4 or
Article 5 or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation. In the event that, after the Company or the
Guarantor, as the case may be, has used its reasonable best efforts to obtain
the written statement of the Company's independent public accountants or the
Guarantor's independent public accountants, as the case may be, required by the
provisions of this paragraph, such statement cannot be obtained, the Company or
the Guarantor, as the case may be, shall deliver, in satisfaction of its
obligations under this Section 4.04, an Officers' Certificate (A) certifying
that it has used its reasonable best efforts to obtain such required statement
but was unable to do so and (B) attaching the written statement of the Company's
accountants or the Guarantor's accountants, as the case may be, that the Company
or the Guarantor, as the case may be, received in lieu thereof.
(c) Each of the Company and the Guarantor shall, so long as any of
the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company or the
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
Section 4.05. Taxes.
Each of the Company and the Guarantor shall pay, and shall cause
each of its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
Each of the Issuers and the Guarantor covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and each of
the Is-
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suers and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or
distribution on account of the Company's, the Guarantor's or any of their
Restricted Subsidiaries' Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation involving the
Company, the Guarantor or any of their Restricted Subsidiaries) or to the
direct or indirect holders of the Company's, the Guarantor's or any of
their Restricted Subsidiaries' Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company or the Guarantor or, in the case
of the Company and its Restricted Subsidiaries, to the Company or a
Restricted Subsidiary of the Company or in the case of the Guarantor and
its Restricted Subsidiaries, to the Company, the Guarantor or a Restricted
Subsidiary of the Company or the Guarantor);
(b) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company
or the Guarantor or any direct or indirect parent of the Company or the
Guarantor or any Restricted Subsidiary of the Company or the Guarantor
(other than, in the case of the Company and its Restricted Subsidiaries,
any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company or, in the case of the Guarantor and its
Restricted Subsidiaries, any such Equity Interests owned by the Company,
the Guarantor or any Restricted Subsidiary of the Company or the
Guarantor); or
(c) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Guarantees (other than the Notes or the
Guarantees), except a payment of interest or principal at the Stated
Maturity thereof
(all such payments and other actions set forth in clauses (a) through (c) above
being collectively referred to as "Restricted Payments"), unless, at the time of
and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Leverage Ratio test set forth in the first paragraph of Section 4.10;
and
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(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company, the Guarantor and each
of their Restricted Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by clauses (2), (3), (4), (5),
(6), (7) and (8) of the next succeeding paragraph), shall not exceed, at
the date of determination, the sum of:
(a) an amount equal to 100% of the combined Consolidated
EBITDA of the Company and the Guarantor since the date of this
Indenture to the end of the Company's and the Guarantor's most
recently ended full fiscal quarter for which internal financial
statements are available, taken as a single accounting period, less
the product of 1.2 times the combined Consolidated Interest Expense
of the Company and the Guarantor since the date of this Indenture to
the end of the Company's and the Guarantor's most recently ended
full fiscal quarter for which internal financial statements are
available, taken as a single accounting period, plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds
less any such Capital Stock Sale Proceeds used in connection with
(i) an Investment made pursuant to clause (6) of the definition of
"Permitted Investments" or (ii) the incurrence of Indebtedness
pursuant to clause (10) of Section 4.10, plus
(c) $100.0 million.
So long as no Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or the
Guarantor in exchange for, or out of the net proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company or the
Guarantor ) of, Equity Interests of the Company or the Guarantor (other
than Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause
(3) (b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company, the Guarantor or any of their
Restricted Subsidiaries with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) regardless of whether a Default then exists, the payment of any
dividend or distribution to the extent necessary to permit direct or
indirect beneficial owners of shares of Capital Stock of the Company or
the Guarantor to pay federal, state or local income tax liabilities that
would arise solely from income of the Company or the Guarantor or any of
their Restricted Subsidiaries, as the case may be, for the relevant
taxable period and attributable to
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them solely as a result of the Company or the Guarantor (and any
intermediate entity through which the Holder owns such shares) or any of
its Restricted Subsidiaries being a limited liability company, partnership
or similar entity for federal income tax purposes;
(5) regardless of whether a Default then exists, the payment of any
dividend by a Restricted Subsidiary of the Company or the Guarantor to the
holders of its common Equity Interests on a pro rata basis;
(6) the payment of any dividend on the Company Preferred Stock or
the redemption, repurchase, retirement or other acquisition of the Company
Preferred Stock in an amount not in excess of its aggregate liquidation
value;
(7) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or the Guarantor held by
any member of the Company's or the Guarantor's management pursuant to any
management equity subscription agreement or stock option agreement in
effect as of the date of this Indenture; provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $10 million in any fiscal year; and
(8) payment of fees in connection with any acquisition, merger or
similar transaction in an amount that does not exceed an amount equal to
1.25% of the transaction value of such acquisition, merger or similar
transaction.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company, the Guarantor or
any of their Restricted Subsidiaries pursuant to the Restricted Payment. The
fair market value of any assets or securities that are required to be valued by
this covenant shall be determined by the Board of Directors of the Company or
the Guarantor, as the case may be, whose resolution with respect thereto shall
be delivered to the Trustee. Such Board of Director's determination must be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the fair market value exceeds
$100 million. Not later than the date of making any Restricted Payment, the
Company or the Guarantor, as the case may be, shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.07 were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
Section 4.08. Investments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) make any Restricted Investment; or
(2) allow any Restricted Subsidiary of the Company or the Guarantor
to become an Unrestricted Subsidiary,
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unless, in each case:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(2) the Company would, at the time of, and after giving effect to,
such Restricted Investment or such designation of a Restricted Subsidiary
as an Unrestricted Subsidiary, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Leverage Ratio test set forth
in the first paragraph of Section 4.10.
Any designation of a Subsidiary of the Company or the Guarantor as
an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by this Section 4.08.
If, at any time, any Unrestricted Subsidiary would fail to meet the requirements
as an Unrestricted Subsidiary described in the definition of "Unrestricted
Subsidiary," it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company or the Guarantor
as of such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.10, the Company or the Guarantor, as the case may be,
shall be in default. The Board of Directors of the Company and the Guarantor may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company or the Guarantor,
respectively, of any outstanding Indebtedness of such Unrestricted Subsidiary
and such designation shall only be permitted if (1) such Indebtedness is
permitted under the covenant described under Section 4.10 calculated on a pro
forma basis as if such designation had occurred at the beginning of the
Reference Period; and (2) no Default or Event of Default would be in existence
following such designation.
Section 4.09. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company and the Guarantor shall not, directly or indirectly,
create or permit to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary of the Company or the Guarantor, as the
case may be, to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Company or any of its Restricted Subsidiaries or to the
Guarantor or any of its Restricted Subsidiaries, or with respect to any
other interest or participation in, or measured by, its profits, or pay
any indebtedness owed to the Company or any of its Restricted Subsidiaries
or to the Guarantor or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries or to the Guarantor or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any
of its Restricted Subsidiaries or to the Guarantor or any of its
Restricted Subsidiaries.
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However, the preceding restrictions shall not apply to encumbrances
or restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the date of this Indenture
(including, without limitation, the Credit Facilities) and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof; provided that such amendments,
modifications, restatements, renewals, increases, supplements,
refinancings, replacements or refinancings are no more restrictive, taken
as a whole, with respect to such dividend and other payment restrictions
than those contained in such Existing Indebtedness, as in effect on the
date of this Indenture;
(2) this Indenture, the Notes and the Other Notes;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries or to
the Guarantor or any of its Restricted Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of the
Indenture to be incurred;
(5) customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices;
(6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired of
the nature described in clause (3) of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary of either the Company or the Guarantor that restricts
distributions by such Restricted Subsidiary pending its sale or other
disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to the provisions of the covenant described above under Section
4.14 that limit the right of the Company or any of its Restricted
Subsidiaries or the Guarantor or any of its Restricted Subsidiaries to
dispose of the assets subject to such Lien;
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(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(12) restrictions contained in the terms of Indebtedness permitted
to be incurred under Section 4.10; provided that such restrictions are no
more restrictive than the terms contained in the Credit Facilities as in
effect on the Issue Date; and
(13) restrictions that are not materially more restrictive than
customary provisions in comparable financings and the management of the
Company determines that such restrictions will not materially impair the
Company's ability to make payments as required under the Notes.
Section 4.10. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and the Company and the Guarantor shall
not issue any Disqualified Stock and shall not permit any of their Restricted
Subsidiaries to issue any shares of preferred stock unless the Leverage Ratio
would have been not greater than 8.75 to 1.0 determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of the most recently ended fiscal
quarter.
So long as no Default shall have occurred and be continuing or would
be caused thereby, the first paragraph of this covenant shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company and its Restricted Subsidiaries
and the Guarantor and its Restricted Subsidiaries of Indebtedness under
the Credit Facilities; provided that the aggregate principal amount of all
Indebtedness of the Company and its Restricted Subsidiaries and the
Guarantor and its Restricted Subsidiaries outstanding under all Credit
Facilities after giving effect to such incurrence does not exceed an
amount equal to $3.5 billion less the aggregate amount of all Net Proceeds
of Asset Sales applied by the Company or any of its Subsidiaries or the
Guarantor or any of its Subsidiaries, as the case may be, in the case of
an Asset Sale since the date of this Indenture to repay Indebtedness under
a Credit Facility pursuant to Section 4.11;
(2) the incurrence by the Company and its Restricted Subsidiaries
and the Guarantor and its Restricted Subsidiaries of Existing Indebtedness
(other than the Credit Facilities);
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(3) the incurrence on the Issue Date by the Company and its
Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries
of Indebtedness represented by the Notes, the Other Notes and the related
Guarantees;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case, incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement (including, without limitation, the cost of design,
development, construction, acquisition, transportation, installation,
improvement, and migration) of Productive Assets of the Company or any of
its Restricted Subsidiaries or the Guarantor or any of its Restricted
Subsidiaries, in an aggregate principal amount not to exceed $75 million
at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace, in whole or in part,
Indebtedness (other than intercompany Indebtedness) that was permitted by
this Indenture to be incurred under the first paragraph of this covenant
or clauses (2) or (3) of this paragraph;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries or the Guarantor or any of its Restricted Subsidiaries, as
the case may be, of intercompany Indebtedness between or among the Company
and any of its Wholly Owned Restricted Subsidiaries, or the Guarantor or
any of its Restricted Subsidiaries, respectively; provided that except for
the Mirror Note, this clause does not permit Indebtedness between the
Company or any of its Restricted Subsidiaries, as creditor or debtor, as
the case may be, and the Guarantor or any of its Restricted Subsidiaries,
as debtor or creditor, as the case may be, unless otherwise permitted by
the Indentures; provided, further, that:
(a) if the Company or the Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to
the Notes in the case of the Company, or the Guarantee of such
Guarantor, in the case of the Guarantor; and
(b)(i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Wholly Owned Restricted Subsidiary thereof or
the Guarantor or a Wholly Owned Restricted Subsidiary thereof and
(ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Wholly Owned Restricted
Subsidiary thereof, or the Guarantor or a Wholly Owned Restricted
Subsidiary thereof, shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or any of its
Restricted Subsidiaries or the Guarantor or any of its Restricted
Subsidiaries, respectively, as the case may be, that was not
permitted by this clause (6);
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(7) the incurrence by the Company or any of its Restricted
Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of the Indentures to be outstanding;
(8) the guarantee by the Company or the Guarantor of Indebtedness of
the Company or a Restricted Subsidiary of the Company, or Indebtedness of
the Guarantor or a Restricted Subsidiary of the Guarantor that was
permitted to be incurred by another provision of this Section 4.10;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount at any time
outstanding, not to exceed $300 million;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, of
additional Indebtedness in an aggregate principal amount at any time
outstanding, not to exceed 200% of the net cash proceeds received by the
Company from the sale of its Equity Interests (other than Disqualified
Stock) after the date of this Indenture to the extent such net cash
proceeds have not been applied to make Restricted Payments or to effect
other transactions pursuant to Section 4.07 or to make Permitted
Investments pursuant to clause (6) of the definition thereof;
(11) the accretion or amortization of original issue discount and
the write up of Indebtedness in accordance with purchase accounting; and
(12) Indebtedness under the Mirror Note.
For purposes of determining compliance with this Section 4.10, in
the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in clauses (1) through (12)
above, or is entitled to be incurred pursuant to the first paragraph of this
covenant, the Company or the Guarantor, as the case may be, shall be permitted
to classify and from time to time to reclassify such item of Indebtedness on the
date of its incurrence in any manner that complies with this covenant. For
avoidance of doubt, Indebtedness incurred pursuant to a single agreement,
instrument, program, facility or line of credit may be classified as
Indebtedness arising in part under one of the clauses listed above, and in part
under any one or more of the clauses listed above, to the extent that such
Indebtedness satisfies the criteria for such clauses.
Notwithstanding the foregoing, in no event shall any Restricted
Subsidiary of the Company or the Guarantor consummate a Subordinated Debt
Financing or a Preferred Stock Financing. A "Subordinated Debt Financing" or a
"Preferred Stock Financing", as the case may be, with respect to any Restricted
Subsidiary of the Company or the Guarantor shall mean a public offering or
private placement (whether pursuant to Rule 144A under the Securities Act or
otherwise) of Subordinated Notes or preferred stock (whether or not such
preferred stock constitutes Disqualified Stock), as the case may be, of such
Restricted Subsidiary to one or more purchasers (other than to one or more
Affiliates of the Company or the Guarantor). "Subordinated Notes" with respect
to any Restricted Subsidiary of the Company or the Guarantor shall mean
Indebtedness of such Restricted Subsidiary
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that is contractually subordinated in right of payment to any other Indebtedness
of such Restricted Subsidiary (including, without limitation, Indebtedness under
the Credit Facilities). The foregoing limitation shall not apply to (i) any
Indebtedness or preferred stock of any Person existing at the time such Person
is merged with or into or became a Subsidiary of the Company or the Guarantor;
provided that such Indebtedness or preferred stock was not incurred or issued in
connection with, or in contemplation of, such Person merging with or into, or
becoming a Subsidiary of, the Company or the Guarantor and (ii) any Indebtedness
or preferred stock of a Restricted Subsidiary issued in connection with, and as
part of the consideration for, an acquisition, whether by stock purchase, asset
sale, merger or otherwise, in each case involving such Restricted Subsidiary,
which Indebtedness or preferred stock is issued to the seller or sellers of such
stock or assets; provided that such Restricted Subsidiary is not obligated to
register such Indebtedness or preferred stock under the Securities Act or
obligated to provide information pursuant to Rule 144A under the Securities Act.
Section 4.11. Limitation on Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company, the Guarantor or a Restricted Subsidiary of the
Company or the Guarantor, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company's or the
Guarantor's Board of Directors, as the case may be, and evidenced by a
resolution of such Board of Directors set forth in an Officers'
Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received by the
Company, the Guarantor or such Restricted Subsidiary is in the form of
cash, Cash Equivalents or readily marketable securities.
For purposes of this Section 4.11, each of the following shall be
deemed to be cash:
(a) any liabilities (as shown on the Company's, the Guarantor's or
such Restricted Subsidiary's most recent balance sheet) of the Company,
the Guarantor or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the
Notes or the Guarantees) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the
Company, the Guarantor or such Restricted Subsidiary from further
liability;
(b) any securities, notes or other obligations received by the
Company, the Guarantor or any such Restricted Subsidiary from such
transferee that are converted by the Company, the Guarantor or such
Restricted Subsidiary into cash, Cash Equivalents or readily marketable
securities within 60 days after receipt thereof (to the extent of the
cash, Cash Equivalents or readily marketable securities received in that
conversion); and
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(c) Productive Assets.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company, the Guarantor or a Restricted Subsidiary of the Company or
the Guarantor, as the case may be, may apply such Net Proceeds at its option:
(1) to repay debt under the Credit Facilities or any other
Indebtedness of the Restricted Subsidiaries of the Company (other than
Indebtedness represented by a guarantee of a Restricted Subsidiary of the
Company or the Guarantor); or
(2) to invest in Productive Assets; provided that any Net Proceeds
which the Company, the Guarantor, or a Restricted Subsidiary of the
Company or the Guarantor, as the case may be, has committed to invest in
Productive Assets within 365 days of the applicable Asset Sale may be
invested in Productive Assets within two years of such Asset Sale.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph shall constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuers shall
make an Asset Sale Offer to all Holders of Notes and all holders of other
Indebtedness that is pari passu with the Notes containing provisions requiring
offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount at maturity of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds (which amount
includes the entire amount of the Net Proceeds). The offer price in any Asset
Sale Offer shall be payable in cash and equal to 100% of the Accreted Value
thereof plus, after the Full Accretion Date, accrued and unpaid interest, if
any, to the date of purchase. If any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose
not otherwise prohibited by this Indenture. If the aggregate Accreted Value of
Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other pari passu Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
In the event that the Issuers shall be required to commence an offer
to Holders to purchase Notes pursuant to this Section 4.11, they shall follow
the procedures specified in Section 3.09.
Section 4.12. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or the Guarantor may enter into a sale and leaseback
transaction if:
(1) the Company or the Guarantor, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under the Leverage Ratio test in
the first paragraph of Section 4.10 and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.14; and
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(2) the transfer of assets in that sale and leaseback transaction is
permitted by, and the Company or the Guarantor, as the case may be,
applies the proceeds of such transaction in compliance with, the covenant
described above under Section 4.11.
The foregoing restrictions do not apply to a sale and leaseback
transaction if the lease is for a period, including renewal rights, of not in
excess of three years.
Section 4.13. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, and the Guarantor shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary or to the
Guarantor or the relevant Restricted Subsidiary, than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary or the Guarantor or such Restricted Subsidiary, as
the case may be, with an unrelated Person; and
(2) the Company, or the Guarantor, as the case may be, delivers to
the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $15.0 million, a resolution of the Board of Directors of
the Company or a resolution of the Board of Directors of the
Guarantor, as the case may be, set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a
majority of the members of such Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $50.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, shall not be subject to the provisions of the prior paragraph:
(1) existing employment agreement entered into by the Company, the
Guarantor or any of their Subsidiaries and any employment agreement
entered into by the Company or any of its Restricted Subsidiaries, or any
employment agreement entered into by the Guarantor or any of its
Restricted Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Restricted Subsidiary or the
Guarantor or such Restricted Subsidiary, as the case may be;
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(2) transactions between or among the Company and/or its Restricted
Subsidiaries and the transactions between or among the Guarantor and/or
its Restricted Subsidiaries;
(3) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company or the Guarantor, as the case may be,
and customary indemnification and insurance arrangements in favor of
directors, regardless of affiliation with the Company, the Guarantor or
any of their Restricted Subsidiaries;
(4) payment of management fees pursuant to management agreements
either (A) existing on the Issue Date or (B) entered into after the Issue
Date, to the extent that such management agreements provide for percentage
fees no higher than the percentage fees existing under the management
agreements existing on the Issue Date;
(5) Restricted Payments that are permitted by Section 4.07; and
(6) Permitted Investments.
Section 4.14. Liens.
The Company and the Guarantor shall not, directly or indirectly,
create, incur, assume or suffer to exist any Lien of any kind securing
Indebtedness, Attributable Debt or trade payables on any asset now owned or
hereafter acquired, except Permitted Liens.
Section 4.15. Corporate Existence.
Subject to Article 5, each of the Company and the Guarantor shall do
or cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company, the Guarantor or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company, the Guarantor and their
Subsidiaries; provided, however, that neither the Company nor the Guarantor
shall be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of their Subsidiaries (other
than Charter Capital), if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries and the Guarantor and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders of the Notes.
Section 4.16. Repurchase at the Option of Holders upon a Change of Control.
If a Change of Control occurs, each Holder of Notes shall have the
right to require the Issuers to repurchase all or any part (equal to $1,000
principal amount at maturity or an integral multiple thereof) of that Holder's
Notes pursuant to a Change of Control Offer. In the Change of Control Offer, the
Issuers shall offer (a "Change of Control Offer") a payment (the "Change of
Control Payment") in cash equal to 101% of the Accreted Value plus, for any
Change of Control Offer occurring after the Full Accretion Date, accrued and
unpaid interest thereon, if any, to the date of purchase.
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Within ten days following any Change of Control, the Issuers shall
mail a notice to each Holder (with a copy to the Trustee) describing the
transaction or transactions that constitute the Change of Control and stating:
(a) the purchase price and the purchase date, which shall not exceed
30 Business Days from the date such notice is mailed (the "Change of
Control Payment Date");
(b) that any Note not tendered shall continue to accrete in value or
accrue interest;
(c) that, unless the Issuers default in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrete in value or accrue interest after the
Change of Control Payment Date;
(d) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer shall be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date;
(e) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount at maturity of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the
Notes purchased; and
(f) that Holders whose Notes are being purchased only in part shall
be issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount at maturity or an integral
multiple thereof.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act (or any successor rules) and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Notes as a result of a Change of Control.
On the Change of Control Payment Date, the Issuers shall, to the
extent lawful:
(a) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(b) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered;
and
(c) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount at maturity of Notes or portions thereof being purchased
by the Issuers.
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The Paying Agent shall promptly pay to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount at maturity to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note shall
be in a principal amount at maturity of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
The provisions described above that require the Issuers to make a
Change of Control Offer following a Change of Control shall be applicable
regardless of whether or not any other provisions in this Indenture are
applicable. Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Issuers repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction.
Notwithstanding any other provision of this Section 4.16, the
Issuers shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Issuers and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Section 4.17. Limitations on Issuances of Guarantees of Indebtedness.
The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, and the Guarantor shall not permit any of its Restricted
Subsidiaries, directly or indirectly, to Guarantee or pledge any assets to
secure the payment of any other Indebtedness of the Company or the Guarantor, as
the case may be, except in respect of the Credit Facilities (the "Guaranteed
Indebtedness") unless (i) such Restricted Subsidiary of the Company or the
Guarantor, as the case may be, simultaneously executes and delivers a
supplemental indenture providing for the Guarantee (a "Subsidiary Guarantee") of
the payment of the Notes by such Restricted Subsidiary and (ii) until one year
after all the Notes have been paid in full in cash, such Restricted Subsidiary
waives and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company, the Guarantor or any other Restricted Subsidiary of
the Company or the Guarantor as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall
not be applicable to any Guarantee or any Restricted Subsidiary that existed at
the time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. If the Guaranteed Indebtedness is subordinated to the Notes, then
the Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Notes.
Section 4.18. Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries
to, and the Guarantor shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Notes for or as an inducement to any
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consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
Section 4.19. Application of Fall-Away Covenants.
During any period of time that (a) the Notes have Investment Grade
Ratings from both Rating Agencies and (b) no Default or Event of Default has
occurred and is continuing, the Company and its Restricted Subsidiaries and the
Guarantor and its Restricted Subsidiaries shall not be subject to the provisions
of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and clause (4) of the first
paragraph of Section 5.01 (collectively, the "Suspended Covenants"). In the
event that the Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the preceding sentence
and, subsequently, one or both of the Rating Agencies withdraws its ratings or
downgrades the ratings assigned to the Notes below the required Investment Grade
Ratings or a Default or Event of Default occurs and is continuing, then the
Company and its Restricted Subsidiaries and the Guarantor and its Restricted
Subsidiaries shall thereafter again be subject to the Suspended Covenants and
compliance with the Suspended Covenants with respect to the Restricted Payments
made after the time of such withdrawal, downgrade, Default or Event of Default
will be calculated in accordance with the terms of Section 4.07 as though such
covenant had been in effect during the entire period of time from the Issue
Date.
Section 4.20. Impairment of Security Interest.
Neither the Company, the Guarantor nor any of their Subsidiaries
shall take or omit to take any action which action or omission would have the
result of adversely affecting or impairing the security interest in favor of the
Trustee, on behalf of itself and the Holders, with respect to the Collateral,
and neither the Company, the Guarantor nor any of their Subsidiaries shall grant
to any Person, or suffer any Person (other than the Trustee with respect to the
Collateral securing the obligations under the Notes and the Company with respect
to the Collateral securing the obligations under the Mirror Note) to have any
interest whatsoever in the Collateral other than Liens permitted by the Pledge
Documents. Neither the Company nor any of its Subsidiaries shall enter into any
agreement or instrument that by its terms requires the proceeds received from
any sale of Collateral to be applied to repay, redeem, defease or otherwise
acquire or retire any Indebtedness of any Person, other than pursuant to this
Indenture, the Notes and the Pledge Documents.
Section 4.21. Security Interest.
The Company and the Guarantor shall, and shall cause each of their
Restricted Subsidiaries to, undertake to deliver or cause to be delivered to the
Trustee from time to time such other documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to the
Trustee as the Trustee shall deem necessary or advisable to perfect or maintain
the security interest in the Collateral for the benefit of the Trustee on behalf
of the Holders until any such Collateral is released in accordance with the
terms of this Indenture.
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ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Neither of the Issuers nor the Guarantor may, directly or
indirectly: (1) consolidate or merge with or into another Person (whether or not
such Issuer, or the Guarantor, as the case may be, is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of its properties or assets, in one or more related
transactions, to another Person; unless:
(1) either: (a) such Issuer, or the Guarantor, as the case may be,
is the surviving corporation; or (b) the Person formed by or surviving any
such consolidation or merger (if other than such Issuer, or the Guarantor,
as the case may be) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a Person organized
or existing under the laws of the United States, any state thereof or the
District of Columbia (provided that if the Person formed by or surviving
any such consolidation or merger with either Issuer is a limited liability
company or other Person other than a corporation, a corporate co-issuer
shall also be an obligor with respect to the Notes);
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company, or the Guarantor, as the case may be)
or the Person to which such sale, assignment, transfer, conveyance or
other disposition shall have been made assumes all the obligations of the
Company, or the Guarantor, as the case may be, under the Notes in the case
of the Company, or under the Guarantee, in the case of the Guarantor, and
this Indenture pursuant to agreements reasonably satisfactory to the
Trustee;
(3) immediately after such transaction no Default or Event of
Default exists; and
(4) the Company, or the Guarantor, as the case may be, or the Person
formed by or surviving any such consolidation or merger (if other than the
Company, or the Guarantor, as the case may be) will, on the date of such
transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, either (A) be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Leverage Ratio test set
forth in the first paragraph of Section 4.10 or (B) have a Leverage Ratio
immediately after giving effect to such consolidation or merger no greater
than the Leverage Ratio immediately prior to such consolidation or merger.
In addition, the Company may not, directly or indirectly, and the
Guarantor may not, directly or indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions, to any other Person.
This Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and any of its
Wholly-Owned Subsidiaries, or the Guarantor and any of its Wholly-Owned
Subsidiaries, as the case may be.
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Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of either Issuer or the Guarantor, as the case may be, in accordance with
Section 5.01, the successor Person formed by such consolidation or into which
either Issuer or the Guarantor, as the case may be, is merged or to which such
transfer is made shall succeed to and (except in the case of a lease) be
substituted for, and may exercise every right and power of, such Issuer or the
Guarantor, as the case may be, under this Indenture with the same effect as if
such successor Person had been named therein as such Issuer or the Guarantor, as
the case may be, and (except in the case of a lease) such Issuer or the
Guarantor, as the case may be, shall be released from the obligations under the
Notes (or the Guarantee, in the case of the Guarantor) and this Indenture,
except with respect to any obligations that arise from, or are related to, such
transaction.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Issuers default in the payment when due of interest on the
Notes and such default continues for a period of 30 days;
(b) the Issuers default in payment when due of the Accreted Value
of, or premium, if any, on the Notes;
(c) the Company or any of its Restricted Subsidiaries, or the
Guarantor or any of its Restricted Subsidiaries, fails to comply with any
of the provisions of Sections 4.16 or 5.01;
(d) the Company or any of its Restricted Subsidiaries, or the
Guarantor or any of its Restricted Subsidiaries, fails to comply with any
of their other covenants or agreements in this Indenture for 30 days after
written notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by Holders of at least 25% of the aggregate
principal amount at maturity of the Notes outstanding;
(e) the Company or any of its Restricted Subsidiaries, or the
Guarantor or any of its Restricted Subsidiaries, defaults 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 (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries or by the Guarantor or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists or is
created after the date of this Indenture, if that default:
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(1) is caused by a failure to pay at final stated maturity the
principal amount on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $100.0 million or more;
(f) the Company or any of its Restricted Subsidiaries, or the
Guarantor or any of its Restricted Subsidiaries, fails to pay final
judgments which are non-appealable aggregating in excess of $100.0 million
(net of applicable insurance which has not been denied in writing by the
insurer), which judgments are not paid, discharged or stayed for a period
of 60 days;
(g) the Company, the Guarantor or any of their Significant
Subsidiaries pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, the Guarantor or any of
their Significant Subsidiaries in an involuntary case;
(ii) appoints a custodian of the Company, the Guarantor or any
of their Significant Subsidiaries or for all or substantially all of
the property of the Company, the Guarantor or any of their
Significant Subsidiaries; or
(iii) orders the liquidation of the Company, the Guarantor or
any of their Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive
days;
(i) except as permitted by this Indenture, the Guarantee of the
Guarantor shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to
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be in full force and effect or the Guarantor, or any Person acting on
behalf of the Guarantor, shall deny or disaffirm its obligations under the
Guarantee; or
(j) except as permitted by this Indenture, any of the Pledge
Documents cease to be in full force and effect (other than in accordance
with their respective terms or the terms of the Indenture), or any of the
Pledge Documents cease to give the Trustee or the Company, as the case may
be, the Liens purported to be created thereby, or any Pledge Document is
declared null and void, or the Company or the Guarantor shall repudiate or
deny in writing that it has any liability or obligation under any Pledge
Document.
Section 6.02. Acceleration.
In the case of an Event of Default arising from clause (g) or (h) of
Section 6.01, with respect to the Company or the Guarantor, all outstanding
Notes shall become due and payable immediately without further action or notice.
If any other Event of Default occurs and is continuing, the Trustee by notice to
the Issuers or the Holders of at least 25% in aggregate principal amount at
maturity of the then outstanding Notes by notice to the Issuers and the Trustee
may declare all the Notes to be due and payable immediately in an amount equal
to (x) the Accreted Value of the Notes outstanding on the date of acceleration,
if such declaration is made prior to the Full Accretion Date or (y) the entire
principal amount at maturity of all the Notes outstanding on the date of
acceleration plus accrued interest, if any, to the date of acceleration, if such
declaration is made after the Full Accretion Date. The Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
Accreted Value, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of Accreted Value, premium,
if any, and interest on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Existing Defaults.
Holders of not less than a majority in aggregate principal amount at
maturity of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the Accreted Value of, premium, if any, or interest on, the
Notes (including in connection with an offer to purchase) (provided, however,
that the Holders of
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a majority in aggregate principal amount at maturity of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). 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 6.05. Control by Majority.
Holders of a majority in aggregate principal amount at maturity of
the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper that is not inconsistent with any such
directive.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount at
maturity of the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount at maturity of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of Accreted Value, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
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Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Issuers for the whole amount of
Accreted Value of, premium, if any, and interest remaining unpaid on the Notes
and interest on overdue Accreted Value and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), their creditors or their property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian 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 to the Trustee any
amount due to 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 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for Accreted Value, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for Accreted Value, premium, if any and interest,
respectively; and
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Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07, or a suit by Holders of more than 10% in
aggregate principal amount at maturity of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own
gross negligent action, its own gross negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
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(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) 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 or other paper or documents.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from either of the Issuers shall be
sufficient if signed by an Officer of such Issuer.
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(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default
or Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Issuers or any Holder.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuers, the Guarantor
or any Affiliate of either of the Issuers or the Guarantor with the same rights
it would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after the Trustee acquires
knowledge thereof. Except in the case of a Default or Event of Default in
payment of Accreted Value of, premium, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
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A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Issuers shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Issuers and the Guarantor shall, jointly and severally,
indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Issuers and the Guarantor
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Issuers or the Guarantor or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its gross negligence or willful misconduct. The Trustee shall
notify the Issuers promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Issuers shall not relieve the Issuers or
the Guarantor of their obligations hereunder. The Issuers and the Guarantor
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Issuers shall pay the reasonable fees
and expenses of such counsel. The Issuers need not pay for any settlement made
without their consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers and the Guarantor under this Section
7.07 shall survive resignation or removal of the Trustee and the satisfaction
and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the resignation or removal
of the Trustee and the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
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Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuers. The Holders of a majority
in aggregate principal amount at maturity of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Issuers in writing. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount at maturity of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in aggregate principal amount at maturity of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Issuers' and the Guarantor's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
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Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims Against the Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective Boards of
Directors evidenced by a resolution set forth in an Officers' Certificate of
each of the Issuers, at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes upon compliance with the conditions set forth
below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.01 of the option
applicable to this Section 8.02, the Issuers and the Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.04, be deemed to have
been discharged from their obligations with respect to all outstanding Notes and
Guarantees thereof on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Issuers, shall
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execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder:
(a) the rights of Holders of outstanding Notes to receive payments
in respect of the Accreted Value of, premium, if any, and interest on such
Notes when such payments are due from the trust referred to below;
(b) the Issuers' obligations with respect to the Notes concerning
issuing temporary Notes, registration of Notes, mutilated, destroyed, lost
or stolen Notes and the maintenance of an office or agency for payment and
money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the
Trustee, and the Issuers' and the Guarantor's obligations in connection
therewith; and
(d) the Legal Defeasance provisions of this Indenture.
Subject to compliance with this Article 8, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03.
Section 8.03. Covenant Defeasance.
Upon the Issuers' exercise under Section 8.01 of the option
applicable to this Section 8.03, the Issuers and the Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.04, be released from
their obligations under the covenants contained in Article 5 and Sections 4.03,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, 4.17 and 4.19 with respect
to the outstanding Notes and Guarantees thereof on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes and Guarantees thereof shall thereafter be deemed
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 Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuers and
the Guarantor 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 6.01, but, except as
specified above, the remainder of this Indenture and such Notes and the
Guarantees thereof shall be unaffected thereby. In addition, upon the Issuers'
exercise under Section 8.01 of the option applicable to this Section 8.03,
subject to the satisfaction of the conditions set forth in Section 8.04,
Sections 6.01(c) through 6.01(f) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
if any, and interest on the outstanding Notes on the stated maturity or on
the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(2) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal 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 Legal Defeasance had
not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes 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;
(4) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to
such deposit); or (b) or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the
91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of the Restricted Subsidiaries is a party or by which the Company
or any of the Restricted Subsidiaries is bound;
(6) the Company must have delivered to the applicable Trustee an
opinion of counsel to the effect that after the 91st day assuming no
intervening bankruptcy, that no Holder is an insider of either of the
Issuers following the deposit and that such deposit would not be deemed by
a court of competent jurisdiction a transfer for the benefit of the
Guarantor or either co-Issuer in its capacity as such, the trust funds
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(7) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes
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over the other creditors of the Company with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others; and
(8) the Company must deliver to the Trustee an Officers' Certificate
and an opinion of counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Notwithstanding the foregoing, the opinion of counsel required by
clause (2) above with respect to a Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation (i) have become
due and payable or (ii) will become due and payable on the maturity date within
one year, by their terms or under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuers.
Section 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuers acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Issuers and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 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 Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any money or non-callable Government Securities held by it as
provided in Section 8.04 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
8.04(a)), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the Accreted Value of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuers for
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payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuers as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuers cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Issuers.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03, 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 Issuers' and the Guarantor's obligations under this
Indenture, the Notes and the Guarantee, as the case may be, shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 or 8.03, as the case may be; provided,
however, that, if the Issuers make any payment of Accreted Value of, premium, if
any, or interest on any Note following the reinstatement of their obligations,
the Issuers or the Guarantor, as the case may be, shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Issuers, the
Guarantor and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of an Issuer's or the Guarantor's
obligations, as the case may be, to Holders of Notes in the case of a
merger or consolidation or sale of all or substantially all of the assets
of either Issuer or the Guarantor, as the case may be, pursuant to Article
5;
(d) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the
legal rights under this Indenture of any such Holder; or
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(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA or otherwise as
necessary to comply with applicable law.
Upon the request of the Issuers accompanied by a resolution of their
respective Boards of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02, the Trustee shall join with the Issuers and the
Guarantor in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, this Indenture
(including Sections 4.11 and 4.16) or the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount at maturity of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or a tender offer or
exchange offer for, Notes) and, subject to Sections 6.04 and 6.07, any existing
Default or compliance with any provision of this Indenture or the Notes may be
waived with the consent of the Holders of a majority in aggregate principal
amount at maturity of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or a tender offer or
exchange offer for, Notes). Section 2.08 shall determine which Notes are
considered to be "outstanding" for purposes of this Section 9.02.
Upon the request of the Issuers accompanied by a resolution of their
respective Boards of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02, the
Trustee shall join with the Issuers and the Guarantor in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a
majority in aggregate principal amount at maturity of the Notes then outstanding
may waive compliance in a particular instance by the Issuers with any provision
of this Indenture or the Notes. However, without the consent of each
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Holder affected, an amendment, supplement or waiver under this Section 9.02 may
not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount at maturity of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the Accreted Value of or change the fixed maturity of any
Note or alter the payment provisions with respect to the redemption of the
Notes (other than provisions relating to Sections 4.11 and 4.16);
(c) reduce the rate of or extend the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of Accreted
Value of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount at maturity of the Notes and a waiver of the
payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of Accreted Value of, or premium, if any, or interest on the
Notes;
(g) waive a redemption payment with respect to any Note (other than
a payment required by one of the covenants described in Sections 4.11 and
4.16);
(h) amend any provision or release the Guarantee of the Guarantor
except pursuant to the Marcus Combination; or
(i) make any change in this Section 9.02.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the TIA
as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuers and the Guarantor may not sign an amendment or supplemental
Indenture until their respective Boards of Directors approve it. In executing
any amended or supplemental indenture, the Trustee shall be entitled to receive
and (subject to Section 7.01) shall be fully protected in relying upon, in
addition to the documents required by Section 12.04, an Officer's Certificate
and an Opinion of Counsel, in each case from each of the Issuers, stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Unconditional Guarantee.
Subject to the provisions of this Article Ten, the Guarantor hereby
unconditionally and irrevocably guarantees, on a senior basis to each Holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Issuers to the Holders or the
Trustee hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest on the Notes (and any Special Interest payable thereon) shall be
duly and punctually paid in full when due, whether at maturity, upon redemption
at the option of Holders pursuant to the provisions of the Notes relating
thereto, by acceleration or otherwise, and interest on the overdue principal and
(to the extent permitted by law) interest, if any, on the Notes and all other
obligations of the Issuers to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07) and all other obligations
shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Issuers to the Holders under this Indenture or under the
Notes, for whatever reason, the Guarantor shall be obligated to pay, or to
perform or cause the performance of, the same immediately. An Event of Default
under this Indenture or the Notes shall constitute an event of default under
this Guarantee,
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and shall entitle the Holders of Notes to accelerate the obligations of the
Guarantor hereunder in the same manner and to the same extent as the obligations
of the Issuers.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuers, any action
to enforce the same, whether or not this Guarantee is affixed to any particular
Note, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of the Guarantor. The Guarantor hereby waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of either Issuer, any right to
require a proceeding first against either Issuer, protest, notice and all
demands whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and this Guarantee or except as otherwise permitted by this Indenture.
This Guarantee is a guarantee of payment and not of collection. If any Holder or
the Trustee is required by any court or otherwise to return to either Issuer or
to the Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to either Issuer or the Guarantor, any amount paid
by either Issuer or the Guarantor to the Trustee or such Holder, this Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantor further agrees that, as between it, on the one hand, and
the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purpose of this Guarantee.
No stockholder, member, officer, director, employee or incorporator,
past, present or future, of the Guarantor , as such, shall have any personal
liability under this Guarantee by reason of his, her or its status as such
stockholder, officer, director, employee or incorporator.
Section 10.02. Limitations on this Guarantee.
The obligations of the Guarantor under its Guarantee are limited to
the maximum amount which, after giving effect to all other contingent and fixed
liabilities of the Guarantor will result in the obligations of the Guarantor
under the Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under any laws of the United States, any state of the United States or
the District of Columbia.
Section 10.03. Execution and Delivery of this Guarantee.
To further evidence the Guarantee set forth in Section 10.01, the
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form of Exhibit F, shall be endorsed on each Note authenticated and delivered by
the Trustee. Such Guarantee shall be executed on behalf of the Guarantor by
either manual or facsimile signature of two Officers of the Guarantor, each of
whom, in each case, shall have been duly authorized to so execute by all
requisite corporate action.
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The validity and enforceability of the Guarantee set forth in Section 10.01
shall not be affected by the fact that it is not affixed to any particular Note.
The Guarantor hereby agrees that its Guarantee set forth in Section 10.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.
If an Officer of the Guarantor whose signature is on this Indenture
or a Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which such Guarantee is endorsed or at any time thereafter, the
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
Section 10.04. Release of Guarantor.
(a) Upon the consummation of the Marcus Combination, the Guarantor's
Guarantee shall be released, and the Guarantor shall be deemed released from all
obligations under this Article Ten and this Indenture without any further action
required on the part of the Guarantor, the Trustee or any Holder. If the Marcus
Combination is not consummated, the Guarantor will not be so released and the
Guarantor or any entity surviving the Guarantor, as applicable, shall remain or
be liable under its Guarantee as provided in this Article Ten.
(b) The Trustee shall deliver an appropriate instrument evidencing
the release of the Guarantor upon receipt of a request by the Company or the
Guarantor accompanied by an Officers' Certificate and an Opinion of Counsel
certifying as to the compliance with this Section 10.04; provided the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on one
or more Officers Certificates of the Company or the Guarantor.
The Trustee shall execute any documents reasonably requested by the
Company or the Guarantor in order to evidence the release of the Guarantor from
its obligations under its Guarantee endorsed on the Notes, under this Article
Ten and under this Indenture.
Section 10.05. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, the Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against either Issuer that arise from the existence, payment, performance or
enforcement of the Issuers' obligations under the Notes or this Indenture and
the Guarantor's obligations under this Guarantee and this Indenture, in any such
instance including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against either Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from either Issuer,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to the Guarantor in violation of the preceding sentence and
any amounts owing to the Trustee or the Holders of Notes under the Notes, this
Indenture, or any other document or instrument delivered under or in connection
with such agreements or instruments, shall
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not have been paid in full, such amount shall have been deemed to have been paid
to the Guarantor for the benefit of, and held in trust for the benefit of, the
Trustee or the Holders and shall forthwith be paid to the Trustee for the
benefit of itself or such Holders to be credited and applied to the obligations
in favor of the Trustee or the Holders, as the case may be, whether matured or
unmatured, in accordance with the terms of this Indenture. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.05 is knowingly made in contemplation of such benefits.
Section 10.06. Immediate Payment.
The Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all obligations under the Notes and this Indenture
owing or payable to the respective Holders upon receipt of a demand for payment
therefor by the Trustee to such Guarantor in writing.
Section 10.07. Obligations Continuing.
The obligations of the Guarantor hereunder shall be continuing and
shall remain in full force and effect until all the obligations have been paid
and satisfied in full. The Guarantor agrees with the Trustee that it will from
time to time deliver to the Trustee suitable acknowledgments of this continued
liability hereunder.
Section 10.08. Obligations Reinstated.
The obligations of the Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of the Guarantor hereunder
(whether such payment shall have been made by or on behalf of either Issuer or
by or on behalf of the Guarantor) is rescinded or reclaimed from any of the
Holders upon the insolvency, bankruptcy, liquidation or reorganization of either
Issuer or the Guarantor or otherwise, all as though such payment had not been
made. If demand for, or acceleration of the time for, payment by either Issuer
is stayed upon the insolvency, bankruptcy, liquidation or reorganization of
either Issuer, all such Indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by the Guarantor as provided herein.
Section 10.09. Obligations Not Affected.
The obligations of the Guarantor hereunder shall not be affected,
impaired or diminished in any way by any act, omission, matter or thing
whatsoever, occurring before, upon or after any demand for payment hereunder
(and whether or not known or consented to by the Guarantor or any of the
Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against the Guarantor hereunder or might operate to release
or otherwise exonerate the Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise.
Section 10.10. Waiver.
Without in any way limiting the provisions of Section 10.01 hereof,
the Guarantor hereby waives notice or proof of reliance by the Holders upon the
obligations of the Guarantor
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hereunder, and diligence, presentment, demand for payment on the Issuers,
protest or notice of dishonor of any of the obligations under the Note and this
Indenture, or other notice or formalities to the Issuers of any kind whatsoever.
Section 10.11. No Obligation To Take Action Against Either Issuer.
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps under
any security for the obligations under the Notes and this Indenture or against
either Issuer or any other Person or any property of either Issuer or any other
Person before the Trustee is entitled to demand payment and performance by the
Guarantor of its liabilities and obligations under its Guarantees or under this
Indenture.
Section 10.12. Dealing With The Company and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of the Guarantor
hereunder and without the consent of or notice to the Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to either Issuer or
any other Person;
(b) take or abstain from taking security or collateral from the
Issuers or from perfecting security or collateral of the Issuers;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given
by the Issuers or any third party with respect to the obligations or
matters contemplated by this Indenture or the Notes;
(d) accept compromises or arrangements from either Issuer;
(e) apply all monies at any time received from either Issuer or from
any security upon such part of the obligations under the Notes or this
Indenture as the Holders may see fit or change any such application in
whole or in part from time to time as the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, either Issuer and all other Persons and any security as the Holders
or the Trustee may see fit.
Section 10.13. Default and Enforcement.
If the Guarantor fails to pay in accordance with Section 10.06, the
Trustee may proceed in its name as trustee hereunder in the enforcement of the
Guarantee of the Guarantor and the Guarantor's obligations thereunder and
hereunder by any remedy provided by law, whether by legal proceedings or
otherwise, and to recover from the Guarantor the obligations.
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Section 10.14. Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to the Guarantor or consent to any departure by the Guarantor
or any other Person from any such provision will in any event be effective
unless it is signed by the Guarantor, the Issuers and the Trustee.
Section 10.15. Acknowledgement.
The Guarantor hereby acknowledges communication of the terms of this
Indenture and the Notes and consents to and approves of the same.
Section 10.16. Costs and Expenses.
The Guarantor shall pay on demand by the Trustee any and all costs,
fees and expenses (including, without limitation, legal fees on a solicitor and
client basis) incurred by the Trustee, its agents, advisors and counsel or any
of the Holders in enforcing any of their rights under its Guarantee.
Section 10.17. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, remedy, power or privilege hereunder or
under this Indenture or the Notes, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder or under this Indenture or the Notes preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges in the Guarantee and under this
Indenture, the Notes and any other document or instrument between the Guarantor
and/or the Issuers and the Trustee are cumulative and not exclusive of any
rights, remedies, powers and privilege provided by law.
Section 10.18. Effect of Offset or Counterclaim.
The obligations of the Guarantor hereunder shall be enforceable
against the Guarantor without regard to and without giving effect to any right
of offset or counterclaim available to or which may be asserted by the Company
or the Guarantor.
Section 10.19. Guarantee in Addition to Other Obligations.
The obligations of the Guarantor under its Guarantee and this
Indenture are in addition to and not in substitution for any other obligations
to the Trustee or to any of the Holders in relation to this Indenture or the
Notes (including the Purchase Agreement and the Registration Rights Agreement).
Section 10.20. Severability.
Any provision of this Article Ten which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
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unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Ten.
Section 10.21. Successors and Assigns.
Each Guarantee shall be binding upon and inure to the benefit of the
Guarantor, the Issuers, the Trustee and the Holders and their respective
successors and permitted assigns, except that the Guarantor may not assign any
of its obligations hereunder or thereunder.
ARTICLE 11
SECURITY
Section 11.01. Security.
In order to secure the due and punctual payment of the principal of,
premium, if any, and interest, and Special Interest, if any, on the Notes when
and as the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, call for redemption or otherwise, and interest on
the overdue principal and interest, if any, of the Notes and performance of all
other obligations of the Issuers, to the Holders or the Trustee under this
Indenture and the Notes, according to the terms hereof or thereof, the Company
will make an assignment of its right, title and interest in and to the
Collateral to the Trustee pursuant to the Pledge Documents and to the extent
therein provided, no later than the date of the first issuance of the Notes
hereunder. At the time the Pledge Documents are executed, the Company will have
full right, power and lawful authority to grant, bargain, sell, release, convey,
hypothecate, assign, mortgage, transfer and confirm, absolutely, the property
constituting the Collateral in the manner and form done, or intended to be done,
in the Pledge Documents, free and clear of all Liens whatsoever, except to the
extent otherwise provided therein, and (a) will for so long as any Notes are
outstanding, warrant and defend the title to the same against the claims of all
Persons whatsoever, (b) will execute, acknowledge and deliver to the Trustee
such further assignments, transfers, assurances or other instruments as the
Trustee may require or request and (c) will do or cause to be done all such acts
and things as may be necessary or proper, or as may be required by the Trustee,
to assure and confirm to the Trustee the security interest in the Collateral
contemplated hereby and by the Pledge Documents, or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. The Pledge Documents will create a direct
and valid Lien on the property constituting the Collateral as set forth in the
Pledge Documents.
Section 11.02. Recording and Opinions.
The Company will cause, at its own expense, the Pledge Documents,
this Indenture and all amendments or supplements thereto and UCC-1 financing
statements and other applicable documents relating thereto to be registered,
recorded and filed or re-recorded, refiled and renewed in such manner and in
such place or places if any, as may be required by law in order fully to
preserve and protect the Liens created by the Pledge Documents on all parts of
the Collateral and to effectuate and preserve the security of the Holders and
all rights of the Trustee.
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The Company shall furnish to the Trustee:
(a) promptly after the execution and delivery of the Pledge
Documents, an Opinion of Counsel either (a) stating that, in the opinion
of such counsel, this Indenture and the assignment of the Collateral
intended to be made by the Pledge Documents and all other instruments of
further assurance or amendment have been properly recorded, registered and
filed to the extent necessary to make effective the Lien intended to be
created by the Pledge Documents, and reciting the details of such action
or referring to prior opinions of counsel in which such details are given,
and stating that as to the Pledge Documents such recordings, registering
and filings are sufficient to give notice thereof and that no
re-recordings, re-registerings or refilings are necessary to maintain such
notice, and further stating that all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the rights of the Holders and the Trustee hereunder
and under the Pledge Documents, or (b) stating that, in the opinion of
such counsel, no such action is necessary to make such Lien and assignment
effective; and
(b) within 30 days after April 1 in each year beginning with April
1, 2000, an Opinion of Counsel, dated as of such date, either (a) stating
that, in the opinion of such counsel, such action has been taken with
respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Pledge Documents and
reciting the details of such action or referring to prior opinions of
counsel in which such details are given, and stating that all financing
statements and continuation statements have been executed and filed that
are necessary fully to preserve and protect the rights of the Holders and
the Trustee hereunder and under the Pledge Documents, or (b) stating that,
in the opinion of such counsel, no such action is necessary to maintain
such lien and assignment.
Section 11.03. Release of Collateral.
Upon the consummation of the Marcus Combination, the security
interest in the Collateral in favor of the Trustee for the benefit of the
Holders will be immediately released.
To the extent applicable, the Company shall cause TIA ss. 314(d)
relating the release of property from the Lien of the Pledge Documents to be
complied with. Any certificate or opinion required by TIA ss. 314(d) may be made
by an officer of the Company, except in cases in which TIA ss. 314(d) requires
that such certificate or opinion be made by an independent Person.
Section 11.04. Authorization of Actions To Be Taken by the Trustee.
Subject to the provisions of the Pledge Documents, the Trustee shall
have power to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of the Pledge Documents, or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or
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governmental enactment, rule, or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security hereunder or be prejudicial to the interest of the
Trustee).
Section 11.05. Acknowledgment that Collateral Secures the Other Notes.
The Collateral is secured for the equal and ratable benefit of the
holders of the Notes and the holders of the Other Notes.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by the Issuers, the Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the c/o Charter Communications, Inc.
Issuers or the 00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx: Xx. Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Secretary
With a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Xxxxxx Trust and Savings Bank
Trustee: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
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The Issuers, the Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers or the Guarantor to
the Trustee to take any action under this Indenture, the Issuers or the
Guarantor, as the case may be, shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(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 such Person, he or she 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 satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees, Members
and Stockholders.
No director, officer, employee, incorporator, member or stockholder
of the Issuers or the Guarantor, as such, shall have any liability for any
obligations of the Issuers or the Guarantor under the Notes, the Guarantee, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEE WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE NOTES OR ANY GUARANTEE.
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Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuers, the Guarantor or their Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10. Successors.
All agreements of the Issuers and the Guarantor in this Indenture,
the Notes and the Guarantee, as the case may be, shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.11. Severability.
In case any provision in this Indenture, the Notes or the Guarantee,
as the case may be, 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 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions.
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuers, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and (ii)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuers and thereafter
re-
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paid to the Issuers or discharged from such trust,) have been
delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuers,
and the Issuers, in the case of (i), (ii) or (iii) above, have
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 Notes not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Notes which
have become due and payable) or to the maturity or redemption
thereof, as the case may be;
(2) the Issuers have paid or caused to be paid all other sums
payable hereunder by the Issuers and the Guarantors; and
(3) each of the Issuers have 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 pursuant
to this Article 13, the obligations of the Issuers and the Guarantor to the
Trustee under Section 7.07, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 13.02 shall survive.
Section 13.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 13.01 shall
be held in trust and applied by it, in accordance with the provisions of the
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
[Signatures on following page]
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SIGNATURES
Dated as of March 17, 1999
CHARTER COMMUNICATIONS HOLDINGS, LLC,
as an Issuer
By: /s/ Xxxxxx Xxxxxx
_____________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
CHARTER COMMUNICATIONS HOLDINGS
CAPITAL CORPORATION, as an Issuer
By: /s/ Xxxxxx Xxxxxx
_____________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
MARCUS CABLE HOLDINGS, LLC,
as Guarantor
BY: MARCUS CABLE PROPERTIES, L.L.C.,
as Manager
BY: MARCUS CABLE PROPERTIES, INC.,
as Manager
By: /s/ Xxxxx Xxxxxx
_____________________________________
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Assistant Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
102
EXHIBIT A
[Face of Note]
CUSIP NO. [ ]
9.92% Senior Discount Notes due 2011
No. $
CHARTER COMMUNICATIONS HOLDINGS, LLC
and
CHARTER COMMUNICATIONS HOLDINGS CAPITAL CORPORATION
promise to pay to__________________________________________________________.
or registered assigns,
the principal amount at maturity of ______________________
Dollars ($ ) on April 1, 2011.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Subject to Restrictions set forth in this Note.
Dated: March 17, 1999
A-1
103
CHARTER COMMUNICATIONS HOLDINGS, LLC
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
CHARTER COMMUNICATIONS HOLDINGS
CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By: __________________________________
Authorized Signatory
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104
[Back of Note]
9.92% Senior Discount Notes due 2011
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE
PRICE IS $613.94, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $386.06, THE ISSUE
DATE IS MARCH 17, 1999 AND THE YIELD TO MATURITY IS 9.92% PER ANNUM.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE ISSUERS."(1)
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES."(2)
----------
(1) This paragraph should be included only if the Note is issued in global
form.
(2) This paragraph should be removed upon the exchange of Notes for Exchange
Notes in the Exchange Offer or upon the registration of the Notes pursuant
to the terms of the Registration Rights Agreement.
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105
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Charter Communications Holdings, LLC, a Delaware
limited liability company (the "Company"), and Charter Communications Holdings
Capital Corporation, a Delaware corporation ("Charter Capital" and, together
with the Company, the "Issuers"), promise to pay interest on the principal
amount at maturity of this Note at the rate of 9.92% per annum. The interest
rate on the Notes is subject to increase pursuant to the provisions of the
Registration Rights Agreement. The Issuers will pay interest semi-annually in
arrears on April 1 and October 1 of each year (each an "Interest Payment Date"),
or if any such day is not a Business Day, on the next succeeding Business Day,
commencing on October 1, 2004. The principal amount at maturity of this Note
will not bear or accrue cash interest until April 1, 2004. Cash interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from April 1, 2004; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date. The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue Accreted Value and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect; they shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the March 15 or September 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to Accreted Value, premium, if any, and interest at the office or agency of
the Issuers maintained for such purpose within or without the City and State of
New York, or, at the option of the Issuers, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to Accreted Value of and interest and
premium on all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Issuers or the Paying Agent. Such
payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, Xxxxxx Trust and Savings
Bank, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Issuers may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuers issued the Notes under an Indenture dated
as of March 17, 1999 ("Indenture") between the Issuers, Marcus Cable Holdings,
LLC (the "Guarantor") and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of
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the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code xx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Issuers limited to $1.475 billion
in aggregate principal amount at maturity, of which all $1.475 billion in
aggregate principal amount at maturity of Notes were issued on the Issue Date.
The Notes are guaranteed on a senior basis by the Guarantor.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Paragraph 5, the
Issuers shall not have the option to redeem the Notes prior to April 1, 2004.
Thereafter, the Issuers shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount at maturity) set forth
below plus accrued and unpaid interest thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the years indicated below:
Year Percentage
---- ----------
2004....................... 104.960%
2005....................... 103.307%
2006....................... 101.653%
2007 and thereafter........ 100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph
5, at any time prior to April 1, 2002, the Issuers may on any one or more
occasions redeem up to 35% of the aggregate principal amount at maturity of the
Notes originally issued under the Indenture on a pro rata basis (or as nearly
pro rata as practicable), at a redemption price of 109.920% of the Accreted
Value thereof, plus, after the Full Accretion Date, accrued and unpaid interest
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that
(1) at least 65% of the aggregate principal amount at maturity
of Notes originally issued under the Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held
by the Company and its Subsidiaries); and
(2) the redemption must occur within 60 days of the date of
the closing of such Equity Offering.
6. MANDATORY REDEMPTION.
Except as otherwise provided in Paragraph 7 below, the Issuers shall
not be required to make mandatory redemption payments with respect to the Notes.
X-0
000
0. XXXXXXXXXX AT OPTION OF HOLDER
(a) If there is a Change of Control, the Issuers shall make an offer
(a "Change of Control Offer") to repurchase all or any part (equal to $1,000
principal amount at maturity or an integral multiple thereof) of each Holder's
Notes at a purchase price equal to 101% of the Accreted Value thereof plus, for
any Change of Control Offer occurring after the Full Accretion Date, accrued and
unpaid interest thereon, if any, to the date of purchase (the "Change of Control
Payment"). Within 10 days following any Change of Control, the Issuers shall
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change
of Control Payment Date specified in such notice, pursuant to the procedures
required by the Indenture and described in such notice.
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sale, when the aggregate amount of Excess Proceeds exceeds $25.0 million, the
Issuers shall commence an offer (an "Asset Sale Offer") pursuant to Section 4.11
of the Indenture to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes containing provisions requiring offers to
purchase or redeem with the proceeds of sales of assets to purchase the maximum
principal amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds (which amount includes the entire amount of
the Net Proceeds). The offer price in any Asset Sale Offer will be payable in
cash and equal to 100% of the Accreted Value thereof plus, after the Full
Accretion Date, accrued and unpaid interest, if any, to the date of purchase. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and such other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed by
first class mail at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address. Notices of redemption may not be conditional. No Notes of $1,000
principal amount at maturity or less may be redeemed in part. Notes in
denominations larger than $1,000 principal amount at maturity may be redeemed in
part but only in whole multiples of $1,000 principal amount at maturity, unless
all of the Notes held by a Holder are to be redeemed. On and after the
redemption date Accreted Value ceases to accrete and interest ceases to accrue,
as the case may be, on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 principal amount at maturity and
integral multiples of $1,000 principal amount at maturity. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require
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a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Issuers may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuers need not exchange or
register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the
Issuers need not exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes, other than with respect to the payment of
Additional Amounts.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount at maturity of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes),
and any existing default or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes). Without the consent of any Holder of
a Note, the Issuers and the Trustee may amend or supplement the Indenture or the
Notes to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of an Issuers' or the Guarantor's, as the case may
be, obligations to Holders of Notes in the case of a merger or consolidation or
sale of all or substantially all of the assets of either Issuer or the
Guarantor, as the case may be, to make any change that would provide any
additional rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA or otherwise as necessary to comply
with applicable law.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of
Default: (i) default for 30 days in the payment when due of interest on the
Notes, (ii) default in payment when due of the Accreted Value of, or premium, if
any, on the Notes, (iii) failure by the Company or any of its Restricted
Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, to comply
with Sections 4.16 and 5.01 of the Indenture, (iv) failure by the Company or any
of its Restricted Subsidiaries, or the Guarantor or any of its Restricted
Subsidiaries, for 30 days after written notice thereof has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% of the aggregate principal amount at maturity of the Notes outstanding
to comply with any of their other covenants or agreements in the Indenture, (v)
default 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 any of its Restricted Subsidiaries, or by the
Guarantor or any of its Restricted Subsidiaries, (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries, or by the
Guarantor or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the date of the Indenture, if that
default: (a) is caused by a failure to pay at final stated maturity the
principal amount of such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a "Payment
Default"); or (b) results in the acceleration of such Indebtedness prior to its
express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal
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amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $100.0
million or more, (vi) failure by the Company or any of its Restricted
Subsidiaries, or by the Guarantor or any of its Restricted Subsidiaries to pay
final judgments which are non-appealable aggregating in excess of $100.0 million
(net of applicable insurance which has not been denied in writing by the
insurer), which judgments are not paid, discharged or stayed for a period of 60
days, (vii) certain events of bankruptcy or insolvency with respect to the
Company or the Guarantor or any of their Significant Subsidiaries, (viii) except
as permitted by the Indenture the Guarantee of the Guarantor being held in any
judicial proceeding to be unenforceable or invalid or ceasing for any reason to
be in full force and effect or is caused by the Guarantor's, or any Person's
(such Person acting on behalf of the Guarantor), denial or disaffirmation of its
obligations under the Guarantee or (ix) except as permitted by the Indenture any
of the Pledge Documents cease to be in full force and effect (other than in
accordance with their respective terms or the terms of the Indenture), or any of
the Pledge Documents cease to give the Trustee or the Company, as the case may
be, the Liens purported to be created thereby, or any Pledge Document is
declared null and void. In the case of an Event of Default arising from certain
events of bankruptcy or insolvency with respect to the Company, all outstanding
Notes will become due and payable without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee by notice to the Issuers
or the Holders of at least 25% in aggregate principal amount at maturity of the
then outstanding Notes by notice to the Issuers and the Trustee may declare all
the Notes to be due and payable in an amount equal to (x) the Accreted Value of
the Notes outstanding on the date of acceleration, if such declaration is made
prior to the Full Accretion Date or (y) the entire principal amount at maturity
of all the Notes outstanding on the date of acceleration, plus accrued interest,
if any, to the date of acceleration, if such declaration is made after the Full
Accretion Date. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in aggregate principal amount at maturity of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount at maturity of
the Notes then outstanding by notice to the Trustee may on behalf of the Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the Accreted Value of, the Notes. The Company
is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture. Upon becoming aware of any Default or Event of Default, the
Company is required to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers, the Guarantor or their Affiliates, and may otherwise
deal with the Issuers, the Guarantor or their Affiliates, as if it were not the
Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator, member or stockholder of either of the Issuers or the Guarantor,
as such, shall not have any liability for any obligations of the Issuers under
the Notes or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives
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and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. GUARANTEES. Until the consummation of the Marcus Combination,
this Note will be entitled to the benefits of certain Guarantees, if any, made
for the benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantor, the Trustee and the Holders.
16. GOVERNING LAW. This Note and the Indenture shall be governed by
and construed in accordance with the laws of the State of New York, as applied
to contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto and the holders agree
to submit to the jurisdiction of the courts of the State of New York in any
action or proceeding arising out of or relating to this Note.
17. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Exchange and
Registration Rights Agreement dated as of March 17, 1999, among the Issuers, the
Guarantor and the initial purchasers named therein (the "Registration Rights
Agreement").
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopier No.: (000) 000-0000
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: _________________________
Your Signature: _____________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: _______________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.11 or 4.16 of the Indenture, check the appropriate box
below:
|_| Section 4.11 |_| Section 4.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$____________________
Date: ____________________________
Your Signature:__________________________
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:__________________
Signature Guarantee*:________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal
Amount of Amount
decrease at Maturity of Signature of
in Principal Amount of this Global authorized
Amount increase in Note officer of
at Maturity Principal Amount following such Trustee or
Date of of this Global at Maturity of decrease Note
Exchange Note this Global Note (or increase) Custodian
-------- ---- ---------------- ------------- ---------
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
Re: 9.92% Senior Discount Notes due 2011
Reference is hereby made to the Indenture, dated as of March 17,
1999 (the "Indenture"), among Charter Communications Holdings, LLC (the
"Company") and Charter Communications Holdings Capital Corporation ("Charter
Capital" and, together with the Company, the "Issuers"), Marcus Cable Holdings,
LLC, as guarantor, and Xxxxxx Trust and Savings Bank, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount at maturity of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial
interest in the Regulation S Global Note or a Definitive Note pursuant to
Regulation S. The Transfer is being
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effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act and (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. |_| Check and complete if Transferee will take delivery of a
beneficial interest in a Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(c) |_| such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
trans-
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ferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Note and/or the Definitive Notes and in
the Indenture and the Securities Act.
4.|_| Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
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This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers.
__________________________________________
[Insert Name of Transferor]
By:_______________________________________
Name:
Title:
Dated: __________________________
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP__________), or
(ii) |_| Regulation S Global Note (CUSIP__________), or
(b) |_| a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP__________), or
(ii) |_| Regulation S Global Note (CUSIP__________), or
(iii) |_| Unrestricted Global Note (CUSIP__________); or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
Re: 9.92% Senior Discount Notes due 2011
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of March 17,
1999 (the "Indenture"), among Charter Communications Holdings, LLC (the
"Company") and Charter Communications Holdings Capital Corporation ("Charter
Capital" and, together with the Company, the "Issuers"), Marcus Cable Holdings,
LLC, as guarantor, and Xxxxxx Trust and Savings Bank, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________ (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount at maturity of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests
in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's
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beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(c) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes
(a) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] 144A Global Note or Regulation S Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed
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Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuers.
______________________________________
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: _______________________
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Charter Communications Holdings, LLC
Charter Communications Holdings Capital Corporation
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
Re: 9.92% Senior Discount Notes due 2011
Reference is hereby made to the Indenture, dated as of March 17,
1999 (the "Indenture"), among Charter Communications Holdings, LLC (the
"Company") and Charter Communications Holdings Capital Corporation ("Charter
Capital" and, together with the Company, the "Issuers"), Marcus Cable Holdings,
LLC, as guarantor, and Xxxxxx Trust and Savings Bank, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount at maturity of:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
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such transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuers such certifications, legal opinions and other information as you and the
Issuers may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy to any interested party
in any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
_______________________________________
[Insert Name of Accredited Investor]
By: ___________________________________
Name:
Title:
Dated: _____________________
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EXHIBIT E
FORM OF GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note (and including Special Interest payable thereon)
in the amounts and at the times when due and interest on the overdue principal,
premium, if any, and interest, if any, of this Note, if lawful, and the payment
or performance of all other obligations of the Issuers under the Indenture (as
defined below) or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
Ten of the Indenture and this Guarantee. This Guarantee will become effective in
accordance with Article Ten of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any particular Note. Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of March 17, 1999, among Charter Communications Holdings,
LLC, a Delaware limited liability company, Charter Communications Holdings
Capital Corporation, a company incorporated under the laws of Delaware, Marcus
Cable Holdings, LLC, a Delaware limited liability company, as guarantor, and
Xxxxxx Trust and Savings Bank, as trustee, as amended or supplemented (the
"Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article Ten of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused its Guarantee to be
duly executed.
Date:______________
MARCUS CABLE HOLDINGS, LLC,
as Guarantor
By: MARCUS CABLE PROPERTIES, L.L.C.,
as Manager
By: MARCUS CABLE PROPERTIES, INC.,
as Manager
By: ________________________________________
Name:
Title:
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EXHIBIT F
FORM OF MIRROR NOTE
9.92% Senior Note due 2007
$1,548,630,855
MARCUS CABLE HOLDINGS, LLC
(the "Borrower")
promises to pay to CHARTER COMMUNICATIONS HOLDINGS, LLC (the "Lender") on April
1, 2007 (the "Maturity Date") the principal amount outstanding on the Maturity
Date.
Interest Payment Dates: April 1 and October 1
Date: March 17, 1999
MARCUS CABLE HOLDINGS, LLC
By: MARCUS CABLE PROPERTIES, L.L.C.,
as Manager
By: MARCUS CABLE PROPERTIES, INC.,
as Manager
By: ________________________________________
Name:
Title:
CHARTER COMMUNICATIONS HOLDINGS, LLC
By: ________________________________________
Name:
Title:
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1. INTEREST. Marcus Cable Holdings, LLC, a Delaware limited
liability Company (the "Borrower"), promises to pay to Charter Communications
Holdings, LLC, a Delaware limited liability company (the "Lender"), interest on
the principal amount of this Note from time to time outstanding at the rate of
9.92% per annum from the date hereof until maturity. The Borrower will pay
interest semi-annually in arrears on April 1 and October 1 of each year (each an
"Interest Payment Date"), or if any such day is not a Business Day, on the next
succeeding Business Day. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided, further, that the first Interest Payment Date shall
be October 1, 1999. The principal amount on which the Borrower will pay interest
on each Interest Payment Day will be the principal amount of this Note
outstanding from time to time during the 6-month period prior to such Interest
Payment Date. The Borrower shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Borrower will pay interest on this Note to
Lender. This Note will be payable as to principal, premium, if any, and interest
by check mailed to Lender at 00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxx,
Xxxxxxxx 00000 or such other address as Lender shall have notified the Borrower
in writing, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest on this Note if
Lender shall have provided wire transfer instructions to the Borrower. Such
payment shall be 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.
3. DEFINED TERMS. Capitalized terms used herein shall have the
meanings assigned to them in the Indenture dated as of March 17, 1999 (the
"Indenture") between the Lender, Charter Communications Holdings Capital
Corporation, a company incorporated under the laws of Delaware, the Borrower,
and Xxxxxx Trust and Savings Bank, as trustee, relating to the 8.625% Senior
Notes due 2009.
4. PREPAYMENT OF NOTE. This Note may be prepaid in whole or in part
at any time without penalty or premium.
5. REPAYMENT AT OPTION OF HOLDER. Upon the occurrence of (i) a
Change of Control or (ii) an Asset Sale, in each case under the Indenture,
Lender may require Borrower to prepay this Note in whole or in part.
6. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on this Note, (ii) default in
payment when due of principal on this Note, and (iii) any event which
constitutes an Event of Default under the Indenture. If any
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Event of Default occurs and is continuing, Lender may declare this Note to be
due and payable. Notwithstanding the foregoing, upon the occurrence of an Event
of Default pursuant to Section 6.01(g) or (h) of the Indenture, this Note will
become due and payable without further action or notice. Lender may waive any
existing Default or Event of Default and its consequences except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
this Note. The Borrower is required upon becoming aware of any Default or Event
of Default to deliver to Lender a statement specifying such Default or Event of
Default.
7. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator, member or stockholder, of the Borrower, as such, shall not have
any liability for any obligations of the Borrower under this Note or for any
claim based on, in respect of, or by reason of, such obligation or its creation.
Lender by accepting this Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of this Note.
8. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York, without regard to principles of
conflict of laws. Each of the parties hereto and the holders agree to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Note.
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