1
EXHIBIT 4.1
EXECUTION COPY
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INDENTURE
Dated as of July 29, 1998
Among
CLASSIC CABLE, INC., as Issuer,
and
the Subsidiary Guarantors listed on the Appendix hereto
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
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$125,000,000
9 7/8% Senior Subordinated Notes due 2008
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions..........................................................1
SECTION 1.02 Other Definitions. .................................................22
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...................23
SECTION 1.04 Rules of Construction...............................................23
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.....................................................24
SECTION 2.02 Execution and Authentication........................................24
SECTION 2.03 Registrar; Paying Agent; Depositary.................................25
SECTION 2.04 Paying Agent to Hold Money in Trust.................................26
SECTION 2.05 Securityholder Lists................................................26
SECTION 2.06 Transfer and Exchange...............................................26
SECTION 2.07 Replacement Securities..............................................27
SECTION 2.08 Outstanding Securities..............................................27
SECTION 2.09 Treasury Securities.................................................28
SECTION 2.10 Temporary Securities................................................28
SECTION 2.11 Cancellation........................................................28
SECTION 2.12 Defaulted Interest..................................................29
SECTION 2.13 Book-Entry Provisions for Global Securities.........................29
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee..................................................30
SECTION 3.02 Selection of Securities to Be Redeemed..............................31
SECTION 3.03 Notice of Redemption................................................31
SECTION 3.04 Effect of Notice of Redemption......................................32
SECTION 3.05 Deposit of Redemption Price.........................................32
SECTION 3.06 Securities Redeemed in Part.........................................32
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities...............................................33
SECTION 4.02 Maintenance of Office or Agency.....................................33
SECTION 4.03 Limitation on Transactions with Affiliates..........................34
SECTION 4.04 Limitation on Indebtedness..........................................35
SECTION 4.05 Disposition of Proceeds of Asset Sales..............................37
SECTION 4.06 Limitation on Restricted Payments...................................39
SECTION 4.07 Corporate Existence.................................................41
SECTION 4.08 Payment of Taxes and Other Claims...................................41
SECTION 4.09 Notice of Defaults..................................................41
SECTION 4.10 Maintenance of Properties...........................................42
SECTION 4.11 Compliance Certificate..............................................42
SECTION 4.12 Provision of Financial Information..................................42
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.............................43
SECTION 4.14 Change of Control...................................................43
SECTION 4.15 Limitation on Senior Subordinated Indebtedness......................45
SECTION 4.16 Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries......................45
SECTION 4.17 Designation of Unrestricted Subsidiaries............................46
SECTION 4.18 Limitation on Liens.................................................48
SECTION 4.19 Limitation on Guarantees of Certain Indebtedness....................48
SECTION 4.20 Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries.............................................49
SECTION 4.21 Limitation on Sale/Leaseback Transactions...........................49
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01 Merger, Sale of Assets, etc.........................................50
SECTION 5.02 Successor Corporation Substituted...................................51
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default...................................................53
SECTION 6.02 Acceleration........................................................53
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SECTION 6.03 Other Remedies......................................................54
SECTION 6.04 Waiver of Past Default..............................................54
SECTION 6.05 Control by Majority.................................................55
SECTION 6.06 Limitation on Suits.................................................55
SECTION 6.07 Rights of Holders To Receive Payment................................56
SECTION 6.08 Collection Suit by Trustee..........................................56
SECTION 6.09 Trustee May File Proofs of Claim....................................56
SECTION 6.10 Priorities..........................................................57
SECTION 6.11 Undertaking for Costs...............................................57
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee...................................................58
SECTION 7.02 Rights of Trustee...................................................59
SECTION 7.03 Individual Rights of Trustee........................................61
SECTION 7.04 Trustee's Disclaimer................................................61
SECTION 7.05 Notice of Defaults..................................................61
SECTION 7.06 Reports by Trustee to Holders.......................................62
SECTION 7.07 Compensation and Indemnity..........................................62
SECTION 7.08 Replacement of Trustee..............................................63
SECTION 7.09 Successor Trustee by Merger, etc....................................64
SECTION 7.10 Eligibility; Disqualification.......................................65
SECTION 7.11 Preferential Collection of Claims Against Issuer....................65
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01 Securities Subordinated to Senior Indebtedness......................65
SECTION 8.02 No Payment on Securities in Certain Circumstances...................66
SECTION 8.03 Payment Over of Proceeds upon Dissolution, etc......................67
SECTION 8.04 Subrogation.........................................................68
SECTION 8.05 Obligations of Issuer Unconditional.................................69
SECTION 8.06 Notice to Trustee...................................................70
SECTION 8.07 Reliance on Judicial Order or Certificate of Liquidating
Agent...............................................................71
SECTION 8.08 Trustee's Relation to Senior Indebtedness...........................71
SECTION 8.09 Subordination Rights Not Impaired by Acts or Omissions
of the Issuer or Holders of Senior Indebtedness.....................71
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SECTION 8.10 Securityholders Authorize Trustee to Effectuate
Subordination of Securities.........................................72
SECTION 8.11 This Article Not to Prevent Events of Default.......................72
SECTION 8.12 Trustee's Compensation Not Prejudiced...............................72
SECTION 8.13 No Waiver of Subordination Provisions...............................72
SECTION 8.14 Subordination Provisions Not Applicable to Money Held
in Trust for Securityholders; Payments May Be Paid Prior
to Dissolution......................................................73
SECTION 8.15 Acceleration of Securities..........................................73
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance and Covenant Defeasance..................................73
SECTION 9.02 Application of Trust Money..........................................75
SECTION 9.03 Repayment to Issuer.................................................75
SECTION 9.04 Reinstatement.......................................................76
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders..........................................76
SECTION 10.02 With Consent of Holders.............................................77
SECTION 10.03 Compliance with Trust Indenture Act.................................79
SECTION 10.04 Effect of Consents..................................................79
SECTION 10.05 Notation on or Exchange of Securities...............................80
SECTION 10.06 Trustee to Sign Amendments, etc.....................................80
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01 Unconditional Guarantee.............................................80
SECTION 11.02 Severability........................................................81
SECTION 11.03 Release of a Guarantor..............................................81
SECTION 11.04 Limitation of Subsidiary Guarantor's Liability......................82
SECTION 11.05 Contribution........................................................83
SECTION 11.06 Execution of Subsidiary Guarantee...................................83
SECTION 11.07 Additional Subsidiary Guarantors....................................84
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SECTION 11.08 Subordination of Subrogation and Other Rights.......................84
ARTICLE TWELVE
SUBORDINATION OF GUARANTEES
SECTION 12.01 Subsidiary Guarantees Subordinated to Senior Guarantor
Indebtedness........................................................84
SECTION 12.02 No Payment on Subsidiary Guarantees in Certain
Circumstances.......................................................85
SECTION 12.03 Payment Over of Proceeds upon Dissolution, etc......................86
SECTION 12.04 Subrogation.........................................................88
SECTION 12.05 Obligations of Subsidiary Guarantors Unconditional..................88
SECTION 12.06 Notice to Trustee...................................................89
SECTION 12.07 Reliance on Judicial Order or Certificate of Liquidating
Agent...............................................................90
SECTION 12.08 Trustee's Relation to Guarantor Senior Indebtedness.................90
SECTION 12.09 Subordination Rights Not Impaired by Acts or Omissions
of the Subsidiary Guarantors or Holders of Guarantor
Senior Indebtedness.................................................91
SECTION 12.10 Securityholders Authorize Trustee to Effectuate
Subordination of Subsidiary Guarantees..............................91
SECTION 12.11 This Article Not to Prevent Events of Default.......................91
SECTION 12.12 Trustee's Compensation Not Prejudiced...............................91
SECTION 12.13 No Waiver of Subsidiary Guarantee Subordination
Provisions..........................................................92
SECTION 12.14 Payments May Be Paid Prior to Dissolution...........................92
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls........................................93
SECTION 13.02 Notices.............................................................93
SECTION 13.03 Communications by Holders with Other Holders........................94
SECTION 13.04 Certificate and Opinion as to Conditions Precedent..................95
SECTION 13.05 Statements Required in Certificate or Opinion.......................95
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar...........................96
SECTION 13.07 Governing Law.......................................................96
SECTION 13.08 No Recourse Against Others..........................................96
SECTION 13.09 Successors..........................................................96
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SECTION 13.10 Counterpart Originals...............................................96
SECTION 13.11 Severability........................................................97
SECTION 13.12 No Adverse Interpretation of Other Agreements.......................97
SECTION 13.13 Legal Holidays......................................................97
SIGNATURES.....................................................................................98
EXHIBIT A - Form of Security A-1
EXHIBIT B - Form of Subsidiary Guarantee B-1
EXHIBIT C - Form of Legends for Securities and
Schedule for Exchanges of Global
Security C-1
APPENDIX - Subsidiary Guarantors
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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8
INDENTURE dated as of July 29, 1998, among the subsidiary
guarantors of the Issuer listed on the Appendix hereto, (each a "Subsidiary
Guarantor" and collectively, the "Subsidiary Guarantors"), CLASSIC CABLE INC.,
a Delaware corporation (the "Issuer"), and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Issuer's 9 7/8% Senior Subordinated Notes due 2008 (the "Initial Securities")
and, if and when issued in exchange for Initial Securities as provided in the
Registration Rights Agreement dated as of the date hereof between the Issuer,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs & Co.
(the "Registration Rights Agreement"), the Issuer's 9 7/8% Senior Subordinated
Exchange Notes due 2008, Series B (the "Exchange Securities," together with the
Initial Securities, the "Securities").
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition from such Person and not incurred in connection with, or
in anticipation of, such Person becoming a Restricted Subsidiary or such Asset
Acquisition.
"Acquired Person" means, with respect to any specified Person, any
other Person which merges with or into or becomes a Subsidiary of such
specified Person.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Issuer; (ii) any spouse, immediate family member or other
relative who has the same principal residence as any Person described in clause
(i) above; (iii) any trust in which any such Persons described in clauses (i)
and (ii) above has a beneficial interest; and (iv) any corporation or other
organization of which any such Persons described above collectively owns 5% or
more of the equity of such entity. For purposes of this definition, "control"
(including, with correlative meaning, the terms "controlling," "controlled by"
and "under common control with") when used with respect to any specified Person
includes the direct or indirect beneficial ownership of
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more than 5% of the voting securities of such Person or the power to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"Applicable Premium" means, with respect to a Security, the greater of
(i) 1.0% of the then outstanding principal amount of such Security and (ii) the
excess of (a) the present value of the required interest and principal payments
due on such Security to the first optional redemption date (assuming all
outstanding Securities were called for redemption on such date) or to the final
maturity date of the Securities at the option of the Issuer, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (b) the
then outstanding principal amount of such Security.
"Asset Acquisition" means (i) an Investment by the Issuer or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be consolidated or merged with or into
the Issuer or any Restricted Subsidiary, or (ii) any acquisition by the Issuer
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of an operating unit, a division or line of business of such
Person or which is otherwise outside of the ordinary course of business.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease (that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale leaseback transaction) to
any Person other than the Issuer or any Wholly Owned Restricted Subsidiary, in
one transaction or a series of related transactions, of (i) any Equity Interest
of any Restricted Subsidiary, (ii) any material license, franchise or other
authorization of the Issuer or any Restricted Subsidiary, (iii) any assets of
the Issuer or any Restricted Subsidiary which constitute substantially all of
an operating unit, a division or a line of business of the Issuer or any
Restricted Subsidiary or (iv) any other property or asset of the Issuer or any
Restricted Subsidiary outside of the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include (i) any
transaction consummated in compliance with Section 4.14 or 5.01 and the
creation of any Lien not prohibited under Section 4.18, (ii) the sale of
property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Issuer or
any Restricted Subsidiary, as the case may be, (iii) any transaction
consummated in compliance with Section 4.06, and (iv) sales, transfers or other
disposition of assets with a fair market value not in excess of $1.0 million in
any transaction or series of transactions.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Securities,
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compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Board of Directors" means (i) in the case of a Person that is a
partnership, the board of directors of such Person's corporate general partner
(or if such general partner is itself a partnership, the board of directors of
such general partner's corporate general partner), (ii) in the case of a Person
that is a corporation, the board of directors of such Person and (iii) in the
case of any other Person, the board of directors, management committee or
similar governing body or any authorized committee thereof responsible for the
management of the business and affairs of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of New York
are authorized or obligated by law, resolution or executive order to close.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles
and the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with generally accepted accounting
principles consistently applied.
"Cash Equivalents" means (i) United States dollars; (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition; (iii) certificates of
deposit and Eurodollar time deposits with maturities of six 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 that is a member of the Federal Reserve System having capital and surplus
in excess of $500.0 million; (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution
meeting the qualifications specified in clause (iii) above; (v) commercial
paper having a rating of at least P-1 from Moody's or a rating of at least A-1
from S&P; and (vi) money market mutual or similar funds having assets in excess
of $100.0 million, at least 95% of the assets of which are comprised of assets
specified in clauses (i) through (v) above.
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"CCI" means Classic Communications, Inc., a Delaware corporation.
"CCI Common Stock" means the common stock, par value $.01 per share,
of CCI.
"Change of Control" means the occurrence of any of the following
events: (i) any Person (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, including any group acting for the purpose of acquiring, holding
or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that Person shall be deemed to have "beneficial ownership" of all shares
that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the happening
of an event or otherwise), directly or indirectly, of more than 35% of the
total voting power of the then outstanding Voting Equity Interest of CCI; (ii)
CCI or the Issuer consolidates with, or merges with or into, another Person
(other than a Wholly Owned Restricted Subsidiary) or the Issuer or any of its
Subsidiaries sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of the assets of the Issuer and its Subsidiaries
(determined on a consolidated basis) to any Person (other than the Issuer or
any Wholly Owned Restricted Subsidiary); (iii) CCI or the Issuer is liquidated
or dissolved or adopts a plan of liquidation or dissolution (whether or not
otherwise in compliance with the provisions of this Indenture); (iv) a majority
of the members of the Board of Directors of CCI or the Issuer shall consist of
Persons who are not Continuing Members; or (v) CCI ceases to own 100% of the
issued and outstanding Equity Interest in the Issuer.
"Consolidated Income Tax Expense" means, with respect to the Issuer
for any period, the provision for federal, state, local and foreign income
taxes payable by the Issuer and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied.
"Consolidated Interest Expense" means, with respect to the Issuer and
the Restricted Subsidiaries for any period, without duplication, the sum of (i)
the interest expense of the Issuer and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied, including, without
limitation, amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation and after taking into
account the effect of elections made under any Hedging Agreements, however
denominated, with respect to such Indebtedness; and (ii) the interest component
of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by the Issuer and the Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied. For purposes of this definition,
interest on a Capitalized Lease Xxxxxxxxxx
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xxxxx xx deemed to accrue at an interest rate reasonably determined by the
Issuer to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with generally accepted accounting principles consistently
applied.
"Consolidated Net Income" means, with respect to any period, the net
income (loss) of the Issuer and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied, adjusted, to the extent included in
calculating such net income (loss), by excluding, without duplication, (i) all
extraordinary, unusual or nonrecurring items of income or expense and of gains
or losses and all gains and losses from the sale or other disposition of assets
out of the ordinary course of business (net of taxes, fees and expenses
relating to the transaction giving rise thereto) for such period; (ii) that
portion of such net income (loss) derived from or in respect of investments in
Persons other than any Restricted Subsidiary, except to the extent actually
received in cash by the Issuer or any Restricted Subsidiary; (iii) the portion
of such net income (loss) allocable to minority interests in unconsolidated
Persons for such period, except to the extent actually received in cash by the
Issuer or any Restricted Subsidiary; (iv) net income (loss) of any other Person
combined with the Issuer or any Restricted Subsidiary on a "pooling of
interests" basis attributable to any period prior to the date of combination;
(v) net income (loss) of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that net income (loss) is not at the date of determination
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule of governmental
regulation applicable to that Restricted Subsidiary or the holders of its
Equity Interests; (vi) the cumulative effect of a change in accounting
principles after the date of this Indenture; and (vii) net income (loss)
attributable to discontinued operations determined on a consolidated basis in
accordance with generally accepted accounting principles consistently applied.
"Consolidated Net Worth" with respect to any Person means the equity
of the holders of Qualified Equity Interests of such Person and its Restricted
Subsidiaries, as reflected in a balance sheet of such Person determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Total Indebtedness" means, as at any date of
determination, an amount equal to the aggregate amount of all outstanding
Indebtedness of the Issuer and the Restricted Subsidiaries outstanding as of
such date of determination (including the liquidation value of all Disqualified
Equity Interests), less the obligations of the Issuer or any Restricted
Subsidiary under any Hedging Agreement as of such date of determination that
would appear as a liability
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on the balance sheet of such Person, in each case determined on a consolidated
basis in accordance with generally accepted accounting principles consistently
applied.
"Continuing Members" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Issuer (or CCI, as
the case may be,) on the date of this Indenture, (ii) was nominated for
election or elected to the Board of Directors of the Issuer (or CCI, as the
case may be,) with the affirmative vote of a majority of the Continuing Members
who were members of the Board of Directors of the Issuer (or CCI, as the case
may be,) at the time of such nomination or election or (iii) is a
representative of, or was approved by, a Permitted Holder.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may
give notice to the Issuer.
"Cumulative Credit" means the sum of (i) the aggregate Net Cash
Proceeds received by the Issuer or a Restricted Subsidiary from the issue or
sale (other than to a Restricted Subsidiary) of Equity Interests (other than
Disqualified Equity Interests) of the Issuer or a Restricted Subsidiary on or
after July 29, 1998, plus (ii) the principal amount (or accreted amount
(determined in accordance with generally accepted accounting principles), if
less) of any Indebtedness, of the Issuer or any Restricted Subsidiary which has
been converted into or exchanged for Equity Interests of the Issuer or a
Restricted Subsidiary on or after July 29, 1998, plus (iii) cumulative
Operating Cash Flow on or after July 29, 1998, to the end of the fiscal quarter
immediately preceding the date of the proposed Restricted Payment, or, if
cumulative Operating Cash Flow for such period is negative, minus the amount by
which cumulative Operating Cash Flow is less than zero, plus (iv) to the extent
not already included in Operating Cash Flow, if any Investment constituting a
Restricted Payment that was made after the date of this Indenture is sold or
otherwise liquidated or repaid the initial dividend amount of such Restricted
Payment (less the cost of disposition, if any) on the date of such sale,
liquidation or repayment, as determined in good faith by the Board of
Directors.
"Cumulative Interest Expense" means the aggregate amount of
Consolidated Interest Expense paid or accrued of the Issuer and the Restricted
Subsidiaries on or after July 29, 1998, to the end of the fiscal quarter
immediately preceding the proposed Restricted Payment.
"Debt to Operating Cash Flow Ratio" means the ratio of (i) the
Consolidated Total Indebtedness as of the date of calculation (the
"Determination Date") to (ii) four times the Operating Cash Flow for the latest
three months for which financial information is available immediately preceding
such Determination Date (the "Measurement Period"). For purposes of calculating
Operating Cash Flow for the Measurement Period immediately prior to the
relevant
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Determination Date, (I) any Person that is a Restricted Subsidiary on the
Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Operating Cash Flow) will be deemed to have been a
Restricted Subsidiary at all times during the Measurement Period; (II) any
Person that is not a Restricted Subsidiary on such Determination Date (or would
cease to be a Restricted Subsidiary on such Determination Date in connection
with the transaction that requires the determination of such Operating Cash
Flow) will be deemed not to have been a Restricted Subsidiary at any time
during such Measurement Period; and (III) if the Issuer or any Restricted
Subsidiary shall have in any manner (x) acquired (including through an Asset
Acquisition or the commencement of activities constituting such operating
business) or (y) disposed of (including by way of an Asset Sale or the
termination or discontinuance of activities constituting such operating
business) any operating business during such Measurement Period or after the
end of such period and on or prior to such Determination Date, such calculation
will be made on a pro forma basis in accordance with generally accepted
accounting principles consistently applied, as if, in the case of an Asset
Acquisition or the commencement of activities constituting such operating
business, all such transactions had been consummated on the first day of such
Measurement Period, and, in the case of an Asset Sale or termination or
discontinuance of activities constituting such operating business, all such
transactions had been consummated prior to the first day of such Measurement
Period.
"Default" means any event that is or with the passing of time or
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to Securities issued in the form of
one or more Global Securities, DTC or another Person designated as Depositary
by the Issuer, which Person must be a clearing agency registered under Section
17A of the Exchange Act.
"Designated Senior Guarantor Indebtedness" means, with respect to any
Subsidiary Guarantor, (i) any Indebtedness of such Subsidiary Guarantor
outstanding under the New Senior Credit Agreement and (ii) any other Senior
Guarantor Indebtedness of such Subsidiary Guarantor which, at the time of
determination, has an aggregate principal amount outstanding, together with any
commitments to lend additional amounts, of at least $50.0 million.
"Designated Senior Indebtedness" means (i) any Senior Indebtedness
under the New Senior Credit Agreement and (ii) any other Senior Indebtedness
which at the time of determination has an aggregate principal amount
outstanding of at least $50.0 million and which is specifically designated in
the instrument evidencing such Senior Indebtedness or the agreement under which
such Senior Indebtedness arises as "Designated Senior Indebtedness" by the
Issuer.
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"Designation" has the meaning set forth in Section 4.17.
"Designation Amount" has the meaning set forth in Section 4.17.
"Discount Notes" means the 13 1/4% Senior Discount Notes due 2009
issued by CCI pursuant to an indenture dated July 29, 1998.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means, with respect to any Person, any
Equity Interest which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, or is
exchangeable into Indebtedness or Disqualified Equity Interest, on or prior to
the earlier of the maturity date of the Securities or the date on which no
Securities remain outstanding.
"DTC" means The Depository Trust Company.
"Equity Interest" in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited,
and membership interests in such Person, including any Preferred Stock.
"Equity Offering" means an underwritten public offering by the Issuer
for cash (in an amount not less than $25.0 million) of its common stock
pursuant to the Securities Act of 1933, as amended, registration statement (not
including Forms S-4 or S-8).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Securities and Exchange
Commission thereunder.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at
the date of determination and which are consistently applied for all applicable
periods.
16
-9-
"Global Security" means a Security evidencing all or part of the
Securities issued to the Depositary in accordance with Section 2.13 and bearing
the legend described in Exhibit C.
"Guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"Hedging Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement
providing for the transfer or mitigation of interest rate risks either
generally or under specific contingencies.
"Hedging Obligation" of any Person means the obligations of such
Person pursuant to any Hedging Agreement.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the books of the Registrar or any co-Registrar.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have
meanings correlative to the foregoing). Indebtedness of any Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary (or is merged into or consolidates with the Issuer or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Issuer or any Restricted Subsidiary),
shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with the Issuer or any Restricted
Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
17
-10-
(i) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(ii) all Capitalized Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (i) through (iii)
above) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Equity
Interest or, with respect to any Subsidiary of such Person, the liquidation
preference with respect to, any Preferred Stock (but excluding, in each case,
any accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee;
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
18
-11-
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and
the maximum liability, upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Investment" in any Person means, directly or indirectly, any advance,
loan or other extension of credit (including by means of a guarantee) or
capital contribution to (by means of transfers of property to others, payments
for property or services for the account or use of others or otherwise) such
Person, the acquisition, by purchase or otherwise, of any stock, bonds,
securities, debentures, partnership, membership or joint venture interests or
other securities or other evidence of beneficial interest of any Person, and
shall include the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary. If the Issuer or any Restricted Subsidiary sells or otherwise
disposes of any Voting Equity Interest of any direct or indirect Restricted
Subsidiary such that, after giving effect to such sale or disposition, the
Issuer no longer owns, directly or indirectly, greater than 50% of the
outstanding Voting Equity Interests of such Restricted Subsidiary, the Issuer
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Voting Equity Interests of
such former Restricted Subsidiary not sold or disposed of.
"Investment Banking Fee" means pursuant to an agreement between J.
Xxxxxxx Xxxxxxx and Xxxxxx X. Seach, on the one hand, and the Issuer, on the
other hand, a fee to be paid by the Issuer to such individuals (i) on the date
of this Indenture in the aggregate amount of $550,000 and (ii) thereafter from
time to time in connection with the consummation of acquisitions or financings
by the Issuer in an amount equal to 1.0% of the purchase price paid for such
acquisitions.
"Issue Date" means the original issue date of the Initial Securities,
July 29, 1998.
19
-12-
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of each of the Issuer by its respective Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, President or a
Vice President, and by its respective Treasurer, an Assistant Treasurer,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Lien" means any mortgage, pledge, lien, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including
any conditional sale or capital lease or other title retention agreement, any
lease in the nature thereof or any agreement to give a security interest).
"Maturity Date" means the date, which is set forth on the face of the
Securities, on which the Securities will mature.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
rating agency.
"Net Available Cash" from an Asset Sale means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise and proceeds from the
sale or other disposition of any securities received as consideration, but only
as and when received, but excluding any other consideration received in the
form of assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other non cash form)
therefrom, in each case net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Sale, (ii) all payments
made on any indebtedness which is secured by any assets subject to such Asset
Sale, in accordance with the terms of any Lien upon or other security
arrangement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Sale, or by
applicable law, be repaid out of the proceeds from such Asset Sale, (iii) all
distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries or joint ventures as a result of such Asset
Sale and (iv) the deduction of appropriate amounts to be provided by the seller
as a reserve, in accordance with GAAP, against any liabilities associated with
the assets disposed of in such Asset Sale and retained by the Issuer or any
Restricted Subsidiary after such Asset Sale.
20
-13-
"Net Cash Proceeds" means, with respect to any issuance or sale of
Equity Interests, the proceeds in the form of cash or Cash Equivalents received
by the Issuer or any Restricted Subsidiary of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"New Senior Credit Agreement" means the credit agreement dated as of
July 29, 1998, among the Issuer, the lenders referred to therein, Union Bank of
California, N.A. and Xxxxxxx Sachs Credit Partners L.P., as co-arrangers for
such lenders, together with the related documents thereto (including, without
limitation, any guarantee agreements, pledge agreements and security documents
executed in connection therewith), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring such
indebtedness (provided any amendment, supplement, extension, refinancing,
replacement or restructuring is otherwise permitted under Sections 4.04, 4.05,
4.06, 4.15, 4.16 or 4.19), or adding subsidiaries of the Issuer as additional
borrowers or guarantors thereunder. Without limiting the generality of the
foregoing, "New Senior Credit Agreement" shall include all interest rate
collars, caps, xxxxxx and other interest rate protection agreements with
lenders (or affiliates thereof) party to the New Senior Credit Agreement which
are permitted by Section 4.04(i) of this Indenture.
"Non-Recourse Indebtedness" means Indebtedness of a Person (i) as to
which neither the Issuer nor any of the Restricted Subsidiaries (other than
such Person or any Subsidiaries of such Person) (a) provides any guarantee or
credit support of any kind (including any undertaking, guarantee, indemnity,
agreement or instrument that would constitute Indebtedness) or (b) is directly
or indirectly liable (as a guarantor or otherwise); and (ii) the incurrence of
which will not result in any recourse against any of the assets of either of
the Issuer or the Restricted Subsidiaries (other than to such Person or to any
Subsidiaries of such Person and other than to the Equity Interests in such
Restricted Subsidiary or an Unrestricted Subsidiary).
"Obligations" means any principal, interest (including, without
limitation, Post-Petition Interest), penalties, fees, indemnifications,
reimbursement obligations, damages and other liabilities payable under the
documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board
of Directors, the President, any Vice President, the Chief Financial Officer,
the Treasurer, or the Secretary of such Person.
21
-14-
"Officer's Certificate" means a certificate signed by an Officer
complying with Sections 13.04 and 13.05.
"Operating Cash Flow" means, with respect to the Issuer and the
Restricted Subsidiaries on a consolidated basis, for any period, an amount
equal to Consolidated Net Income for such period increased (without
duplication) by the sum of (i) Consolidated Income Tax Expense accrued for such
period to the extent deducted in determining Consolidated Net Income for such
period; (ii) Consolidated Interest Expense for such period to the extent
deducted in determining Consolidated Net Income for such period; and (iii)
depreciation, amortization and any other non-cash items for such period to the
extent deducted in determining Consolidated Net Income for such period (other
than any non-cash item which requires the accrual of, or a reserve for, cash
charges for any future period) of the Issuer and the Restricted Subsidiaries,
including, without limitation, amortization of capitalized debt issuance costs
for such period, all of the foregoing determined on a consolidated basis in
accordance with generally accepted accounting principles consistently applied,
and decreased by non-cash items to the extent they increased Consolidated Net
Income (including the partial or entire reversal of reserves taken in prior
periods) for such period. For the purpose of this definition, the following
items shall, to the extent expensed in calculating Consolidated Net Income, be
added to Consolidated Net Income: (A) any amounts paid to employees of the
Issuer in respect of investment banking, advisory or transaction fees in
connection with acquisitions or financings of assets of, or advisory services
to, the Issuer, in an amount not to exceed 1.5 percent of the fair market value
of such acquisition or the amount of such financing, and (B) cancellation of
debt to any employee of the Issuer in an aggregate principal amount not to
exceed $200,000.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer or the Trustee.
"Other Pari Passu Debt" means Indebtedness of the Issuer or any
Restricted Subsidiary that does not constitute Subordinated Obligations and is
not senior in right of payment to the Securities.
"Other Permitted Liens" means (i) Liens imposed by law, such as
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which an
appropriate reserve or provision shall have been made in accordance with
generally accepted accounting principles consistently applied; (ii) Liens for
taxes, assessments
22
-15-
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 conducted and for which an appropriate reserve or provision shall
have been made in accordance with generally accepted accounting principles
consistently applied; (iii) easements, rights of way, and other restrictions on
use of property or minor imperfections of title that in the aggregate are not
material in amount and do not in any case materially detract from the property
subject thereto or interfere with the ordinary conduct of the business of the
Issuer or its Subsidiaries; (iv) Liens related to Capitalized Lease
Obligations, mortgage financings or purchase money obligations (including
refinancings thereof), in each case incurred for the purpose of financing all
or any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Issuer or any
Restricted Subsidiary or a Related Business, provided that any such Lien
encumbers only the asset or assets so financed, purchased, constructed or
improved; (v) Liens resulting from the pledge by the Issuer of Equity Interests
in any Subsidiary in connection with the New Senior Credit Agreement; (vi)
Liens resulting from the pledge by the Issuer or Equity Interests in an
Unrestricted Subsidiary in any circumstance where recourse to the Issuer is
limited to the value of the Equity Interests so pledged; (vii) Liens incurred
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (viii)
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds, deposits to secure the performance of bids, trade
contracts, government contracts, leases or licenses or other obligations of a
like nature incurred in the ordinary course of business (including without
limitation, landlord Liens on leased properties); (ix) leases or subleases
granted to third Persons not interfering with the ordinary course of business
of the Issuer; (x) deposits made in the ordinary course of business to secure
liability to insurance carriers; (xi) Liens securing reimbursement obligations
with respect to letters of credit which encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (xii)
Liens on the assets of the Issuer to secure Hedging Agreements with respect to
Indebtedness permitted by this Indenture to be incurred; (xiii) attachment or
judgment Liens not giving rise to a Default or an Event of Default; and (ixv)
any interest or title of a lessor under any capital lease or operating lease.
"Permitted Holders" means Austin Ventures, L.P., BT Capital Partners,
Inc., NationsBank Capital Investors, J. Xxxxxxx Xxxxxxx and Xxxxxx X. Seach.
"Permitted Investments" means (i) Cash Equivalents; (ii) Investments
in prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits;
(iii) the extension of credit to vendors, suppliers and customers in the
ordinary course of business; (iv) Investments existing as of the date of this
Indenture, and any amendment, modification, extension or renewal thereof to the
23
-16-
extent such amendment, modification, extension or renewal does not require the
Issuer or any Restricted Subsidiary to make any additional cash or non-cash
payments or provide additional services in connection therewith; (v) Hedging
Agreements; (vi) any Investment for which the sole consideration provided is
Equity Interests of the Issuer; (vii) any Investment consisting of a guarantee
permitted under clause (e) of the second paragraph of Section 4.04; (viii)
Investments in the Issuer, in any Wholly Owned Restricted Subsidiary or any
Person that, as a result of or in connection with such Investment, becomes a
Wholly Owned Restricted Subsidiary or is merged with or into or consolidated
with the Issuer or a Wholly Owned Restricted Subsidiary, provided, however,
that such Person's primary business is a Related Business; (ix) loans and
advances to officers, directors and employees of the Issuer and the Restricted
Subsidiaries for business-related travel expenses, moving expenses and other
similar expenses in each case incurred in the ordinary course of business not
to exceed $1 million outstanding at any time; (x) any acquisition of assets
solely in exchange for the issuance of Equity Interests of the Issuer; and (xi)
other Investments made after the date of this Indenture, in addition to any
Permitted Investments described in clauses (i) through (x) above, in an
aggregate amount at any one time outstanding not to exceed $1.0 million.
"Person" means any individual, corporation, partnership, limited
liability Issuer, joint venture, association, joint stock Issuer, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Post-Petition Interest" means, with respect to any Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or not, pursuant
to applicable law or otherwise, the claim for such interest is allowed as a
claim in such Insolvency or Liquidation Proceeding.
"Preferred Stock," means, in any Person, an Equity Interest of any
class or classes, however designated, which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Equity
Interests of any other class in such Person.
"Principal" of a debt security means the principal of the security
plus, when appropriate, the premium, if any, on the security.
"Productive Assets" means assets of a kind used or useable by the
Issuer and the Restricted Subsidiaries in any Related Business and specifically
includes assets acquired through
24
-17-
Asset Acquisitions (it being understood that "assets" may include Equity
Interests of a Person that owns such Productive Assets, provided that after
giving effect to such transaction, such Person would be a Restricted
Subsidiary).
"Purchase Money Indebtedness" means Indebtedness of the Issuer or any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
provided that the aggregate principal amount of such Indebtedness does not
exceed the lesser of the fair market value of such property or such purchase
price or cost.
"Qualified Equity Interest" in any Person means any Equity Interest in
such Person other than any Disqualified Equity Interest.
"redemption date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed as Exhibit A.
"Reinvestment Date" means the date which is 365 days after the receipt
of any Net Available Cash from an Asset Sale.
"Related Business" means a cable television, media and communications,
telecommunications, internet service provider or data transmission business,
and businesses ancillary, complementary or reasonably related thereto.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Issuer or a Restricted Subsidiary
transfers such property to a Person and the Issuer or a Restricted Subsidiary
leases it back from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 9 7/8% Senior Subordinated Notes due 2008, as
amended or supplemented from time to time pursuant to the terms of this
Indenture, that are issued under this Indenture.
25
-18-
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Senior Guarantor Indebtedness" means the principal of, premium, if
any, and interest (including interest, whether or not allowable, accruing after
the filing of a petition initiating any proceeding under any state, federal or
foreign bankruptcy law) on any Indebtedness of any Subsidiary Guarantor (other
than as otherwise provided in this definition), whether outstanding on the date
of this Indenture or thereafter created, incurred or assumed, and whether at
any time owing, actually or contingent, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to any Subsidiary Guarantee. Without limiting
the generality of the foregoing, "Senior Guarantor Indebtedness" will also
include the principal of, premium, if any, and interest (including interest,
whether or not allowable, accruing after the filing of a petition initiating
any proceeding under any state, federal or foreign bankruptcy law) on, and all
other amounts owing in respect of, all obligations of every nature of the
Issuer from time to time owed to the lenders under the New Senior Credit
Agreement. Notwithstanding the foregoing, "Senior Guarantor Indebtedness" shall
not include (i) Indebtedness evidenced by the Subsidiary Guarantees, (ii)
Indebtedness that is subordinated or junior in right of payment to any
Indebtedness of any Subsidiary Guarantor, (iii) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Xxxxx 00
Xxxxxx Xxxxxx Code, is without recourse to any Subsidiary Guarantor, (iv)
Indebtedness which is represented by Redeemable Capital Stock, (v) any
liability for foreign, federal, state, local or other taxes owed or owing by
any Subsidiary Guarantor to the extent such liability constitutes Indebtedness,
(vi) Indebtedness of any Subsidiary Guarantor to a Subsidiary or any other
Affiliate of the Issuer or any of such Affiliate's Subsidiaries, (vii) to the
extent it might constitute Indebtedness, amounts owing for goods, materials or
services purchased in the ordinary course of business or consisting of trade
accounts payable owed or owing by such Subsidiary Guarantor, and amounts owed
by such Subsidiary Guarantor for compensation to employees or services rendered
to such Subsidiary Guarantor, (viii) that portion of any Indebtedness which at
the time of issuance is issued in violation of this Indenture and (ix)
Indebtedness evidenced by any guarantee of any Subordinated Indebtedness or
Pari Passu Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest, whether or not allowable, accruing after the
filing of a petition initiating any proceeding under any state, federal or
foreign bankruptcy law) on any Indebtedness of the Issuer (other than as
otherwise provided in this definition), whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, and whether at any time
owing, actually or contingent, unless, in the case of any particular
Indebtedness, the instrument
26
-19-
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Securities. Without limiting the generality of the foregoing,
"Senior Indebtedness" will also include the principal of, premium, if any, and
interest (including interest, whether or not allowable, accruing after the
filing of a petition initiating any proceeding under any state, federal or
foreign bankruptcy law) on, and all other amounts owing in respect of, all
obligations of every nature of the Issuer from time to time owed to the lenders
under the New Senior Credit Agreement. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (i) Indebtedness evidenced by the Securities,
(ii) Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Issuer, (iii) Indebtedness which when incurred and without
respect to any election under Section 1111(b) of Xxxxx 00 Xxxxxx Xxxxxx Code,
is without recourse to the Issuer, (iv) Indebtedness which is represented by
Redeemable Capital Stock, (v) any liability for foreign, federal, state, local
or other taxes owed or owing by the Issuer to the extent such liability
constitutes Indebtedness, (vi) Indebtedness of the Issuer to a Subsidiary or
any other Affiliate of the Issuer or any of such Affiliate's Subsidiaries,
(vii) to the extent it might constitute Indebtedness, amounts owing for goods,
materials or services purchased in the ordinary course of business or
consisting of trade accounts payable owed or owing by the Issuer, and amounts
owed by the Issuer for compensation to employees or services rendered to the
Issuer, (viii) that portion of any Indebtedness which at the time of issuance
is issued in violation of this Indenture and (ix) Indebtedness evidenced by any
guarantee of any Subordinated Indebtedness or Pari Passu Indebtedness.
"Senior Representative" means an authorized representative of a holder
of Senior Indebtedness.
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw
Hill Company, Inc., or any successor rating agency.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Strategic Equity Investment" means an investment in CCI by a company
which is primarily engaged in the media and communications industry or the
telecommunications industry and which has a market capitalization (if a public
company) on the date of such investment in CCI of more than $1.0 billion or, if
not a public company, had total revenues of more than $5.0 billion during its
previous fiscal year.
27
-20-
"Subordinated Obligations" means, with respect to the Issuer, any
Indebtedness of the Issuer which is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means a Person the majority of whose voting stock,
membership interests or other Voting Equity Interests is or are owned by the
Issuer or a Subsidiary. Voting stock in a corporation includes Equity Interests
having voting power under ordinary circumstances to elect directors.
"Subsidiary Guarantees" means the guarantees of the Issuer's
obligations under this Indenture and the Securities.
"Subsidiary Guarantors" means (i) each subsidiary of the Issuer on the
Issue Date, as listed on the Appendix to this Indenture, and (ii) any
Subsidiary of the Issuer that guarantees the Issuer's obligations under this
Indenture and the Securities issued after the date of this Indenture pursuant
to Section 4.19.
"Subsidiary Operating Cash Flow" means, with respect to any Subsidiary
for any period, the "Operating Cash Flow" of such Subsidiary and its
Subsidiaries for such period determined by utilizing all of the elements of the
definition of "Operating Cash Flow" in this Indenture, including the defined
terms used in such definition, consistently applied only to such Subsidiary and
its Subsidiaries on a consolidated basis for such period.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
which has become publicly available at least two business days prior to the
date fixed for redemption of the Securities following a Change of Control (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the then remaining
Weighted Average Life to Maturity of the Securities; provided, however, that if
the Weighted Average Life to Maturity of the Securities is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of
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United States Treasury securities for which such yields are given, except that
if the Weighted Average Life to Maturity of the Securities is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Units" means the units issued by CCI, concurrently with the initial
Securities issued pursuant to this Indenture, consisting of the Discount Notes
and shares of CCI Common Stock.
"Unrestricted Subsidiary" means any Subsidiary of the Issuer (other
than a Subsidiary Guarantor) designated as such pursuant to and in compliance
with Section 4.17. Any such designation may be revoked by a resolution of the
Board of Directors of the Issuer delivered to the Trustee, subject to the
provisions of Section 4.17.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary (i) as to which neither the
Issuer nor any Restricted Subsidiary is directly or indirectly liable (by
virtue of the Issuer or any such Restricted Subsidiary being the primary
obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness, except guaranteed debt of the Issuer or any Restricted Subsidiary
to any Affiliate, in which case (unless the incurrence of such guaranteed debt
resulted in a Restricted Payment at the time of incurrence) the Issuer shall be
deemed to have made a Restricted Payment equal to the principal amount of any
such Indebtedness to the extent guaranteed at the time such Affiliate is
designated an Unrestricted Subsidiary and (ii) which, upon the occurrence of a
default with respect thereto, does not result in, or permit any holder of any
Indebtedness of the Issuer or any Subsidiary to declare, a default on such
Indebtedness of the Issuer or any Subsidiary or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity; provided that
notwithstanding the foregoing any Unrestricted Subsidiary may guarantee the
Securities.
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"Voting Equity Interests" means Equity Interests in any Person with
voting power under ordinary circumstances entitling the holders thereof to
elect the board of directors, board of managers or other governing body of such
Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary of
which all of the outstanding Equity Interests (other than Equity Interests
constituting directors' qualifying shares to the extent mandated by applicable
law) are owned by the Issuer or by one or more Wholly Owned Restricted
Subsidiaries or by the Issuer and one or more Wholly Owned Restricted
Subsidiaries. Notwithstanding the foregoing, so long as Universal Cable
Holding, Inc. holds at least 75% of the issued and outstanding shares of stock
of Universal Cable Communications Inc., Universal Cable of Beaver, Oklahoma,
Inc. and Universal Cable Midwest, Inc., each of such entities shall be deemed
to be a Wholly Owned Subsidiary.
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.03
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Guarantor Payment Blockage Period" 12.02(a)
"Non-Payment Default" 8.02(a)
"Other Indebtedness" 4.19
"Participants" 2.13
"Paying Agent" 2.03
"Payment Blockage Period" 8.02(a)
"Permitted Indebtedness" 4.04
"Physical Securities" 2.13
"Registrar" 2.03
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"Required Filing Dates" 4.12
"Restricted Payment" 4.06
"Revocation" 4.17
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" or "obligors" on the indenture securities means the Issuer or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(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 generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(c) "or" is not exclusive;
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(d) words in the singular include the plural, and words in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.
The Securities and the Trustee's certificates of authentication shall
be substantially in the form of Exhibit A. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. Any
notations, legends or endorsements not contained in the form of Security
contained in Exhibit A shall be delivered in writing to the Trustee. The Issuer
shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the form of the Securities,
annexed hereto as Exhibit A, shall constitute, and are hereby expressly made, a
part of this Indenture.
SECTION 2.02 Execution and Authentication.
An Officer shall sign the Securities for the Issuer by facsimile
signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $125,000,000, upon a written order signed
by an Officer of the Issuer. The order shall specify the amount of Securities
to be authenticated and the date on which the
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original issue of Securities is to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $125,000,000 except
as provided in Section 2.07.
The Securities shall initially be issued in the form of one or more
permanent Global Securities, substantially in the form set forth in Exhibit A.
Global Securities shall be registered in the name of a nominee of the
Depositary and deposited with the Trustee, at its principal operations office
in New York, New York, in its capacity as Securities Custodian, duly executed
by the Issuer and authenticated by the Trustee as hereinafter provided. Each
Global Security shall evidence such of the outstanding Securities as shall be
specified therein and each shall provide that it shall evidence the aggregate
principal amount of outstanding Securities from time to time endorsed thereon,
and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as applicable, to
reflect exchanges, redemptions, and other similar transactions. Any endorsement
of a Global Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by the
Trustee or the Securities Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03 Registrar; Paying Agent; Depositary.
The Issuer shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying
Agent"). The Issuer may have one or more co-Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Issuer shall notify the Trustee of
the name and address of any such Agent. If the Issuer fail to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.07.
The Issuer initially appoints the Trustee as Registrar and Paying
Agent. The Issuer shall give written notice to the Trustee in the event that
the Issuer decides to act as Registrar or Paying Agent.
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The Issuer initially appoints DTC to act as Depositary with respect to
any Global Securities and initially appoints the Trustee to act as Securities
Custodian with respect to any Global Securities.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent to agree in writing to hold
in trust for the benefit of Securityholders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Securities
(whether such money has been paid to it by the Issuer or any other obligor on
the Securities), and the Issuer and the Paying Agent shall each notify the
Trustee of any default by the Issuer (or any other obligor on the Securities)
in making any such payment. If the Issuer or a Subsidiary of the Issuer acts as
Paying Agent, it shall segregate the money and hold it as a separate trust
fund. The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee and account for any funds disbursed and the Trustee may at
any time during the continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon making such payment the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least five Business Days before each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Section 2.13, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Issuer shall
execute and the Trustee shall authenticate Securities. The date of any Security
issued pursuant to this Section 2.06 shall be the date of such transfer or
exchange. No service charge shall be made to the Securityholder for any
registration of transfer or exchange, but the Issuer may require from the
Securityholder payment of a sum sufficient to cover any transfer tax or similar
governmental
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charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges pursuant to Sections 2.10,
3.06, 4.14 or 10.05, in which event the Issuer shall be responsible for the
payment of such taxes).
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system (as described in Section 2.13)
maintained by the Depositary (or its agent), and that ownership of a beneficial
interest in the Global Security shall be required to be reflected in a book
entry.
SECTION 2.07 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuer shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Issuer and the Trustee to protect the Issuer,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced may be required by the Trustee or the Issuer. The Issuer
and the Trustee each may charge such Holder for its expenses in replacing such
Security.
If, after the delivery of such replacement Security, a bona fide
purchaser of the original Security in lieu of which such replacement Security
was issued presents for payment or registration such original Security, the
Trustee shall be entitled to recover such replacement Security from the person
to whom it was delivered or any person taking therefrom, except a bona fide
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred
by the Issuer or the Trustee in connection therewith.
Every replacement Security is an additional obligation of the Issuer.
SECTION 2.08 Outstanding Securities.
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
Except as provided in paragraph 5(b) of the Securities, a Security does not
cease to be outstanding because the Issuer or an Affiliate of the Issuer holds
the Security.
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If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer
or an Affiliate of the Issuer) holds on a redemption date or Maturity Date
money sufficient to pay the principal of, and interest on Securities payable on
that date, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Issuer, any Subsidiary Guarantor or any of their respective Affiliates
shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that a Trust Officer of the Trustee actually knows are so owned
shall be so disregarded.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer consider appropriate for temporary Securities.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11 Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. Except as provided in Section 2.07, the
Issuer may not issue new Securities to replace, or reissue or resell,
Securities which the Issuer has redeemed, paid, purchased on the open market or
otherwise, or otherwise acquired or have been delivered to the Trustee for
cancellation. The Trustee (subject to the record-retention requirements of the
Exchange Act) may, but shall not be required to destroy canceled Securities.
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SECTION 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are
Securityholders on a subsequent special record date, and such term, as used in
this Section 2.12 with respect to the payment of any defaulted interest, shall
mean the fifteenth day next preceding the date fixed by the Issuer for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Issuer shall mail to each
Securityholder and to the Trustee a notice that states such special record
date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.13 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Exhibit C.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Issuer, the Trustee
and any agent of the Issuer or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for certificated Securities ("Physical Securities") in
accordance with the rules and procedures of the Depositary. In addition,
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary
for any Global Security and a successor depositary is not appointed by the
Issuer within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depositary
to issue Physical Securities.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred or
exchanged, and the Issuer shall execute (and any Subsidiary Guarantor shall
execute the Subsidiary Guarantee endorsed thereon), and the Trustee, pursuant
to instructions set forth in an Officer's Certificate from the Issuer, shall
authenticate and deliver, one or more Physical Securities of like tenor and
amount.
(d) In connection with the transfer or exchange of Global Securities
as an entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuer shall execute (and any Subsidiary Guarantor shall execute the
Subsidiary Guarantee endorsed thereon), and the Trustee, pursuant to
instructions set forth in an Officer's Certificate from each of the Issuer,
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Securities, an
equal aggregate principal amount of Physical Securities of authorized
denominations.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Participants and persons that may hold
interests through Participants, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Issuer is to effect the redemption of any Securities pursuant
to paragraph 5 of the Securities at the applicable redemption price set forth
therein, it shall notify the Trustee in writing of the redemption date and the
principal amount of Securities to be redeemed.
The Issuer shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officer's Certificate
stating that such redemption will comply with the conditions contained herein.
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SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
rata or by lot or in such other manner as the Trustee shall deem appropriate
and fair. The Trustee shall make the selection from the Securities then
outstanding, subject to redemption and not previously called for redemption.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Issuer shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) the CUSIP number;
(d) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
redemption date and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender of such Securities to the Paying
Agent; and
(g) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon surrender of such
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Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.
At the Issuer's request, the Trustee shall give the notice of
redemption on behalf of the Issuer, in the Issuer's name and at the Issuer's
expense.
SECTION 3.04 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.05 Deposit of Redemption Price.
At least one Business Day before the redemption date, the Issuer shall
deposit with the Paying Agent (or if the Issuer is the Paying Agent, such
Issuer shall, on or before the redemption date, segregate and hold in trust)
money sufficient to pay the redemption price of and accrued and unpaid interest
on all Securities to be redeemed on that date other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Issuer to the Trustee for cancellation.
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Issuer shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Issuer, a Subsidiary or an Affiliate of the Issuer) holds
on that date money designated for and sufficient to pay the installment in full
and is not prohibited from paying such money to the Holders of the Securities
pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the same rate
per annum borne by the Securities. The Issuer shall pay interest on overdue
installments of interest at the same rate per annum borne by the Securities, to
the extent lawful.
Payments of the principal of and interest on any Global Securities
will be made to the Depositary or its nominee, as the case may be, as the
registered owner thereof. None of the Issuer, the Trustee nor any Paying Agent
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
any Global Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
SECTION 4.02 Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, the City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Issuer in respect of the Securities and this Indenture
may be served. The Issuer 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 Issuer shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the
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Xxxxxxx xx Xxxxxxxxx, the City of New York, for such purposes. The Issuer shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 4.03 Limitation on Transactions with Affiliates.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or conduct any transaction or series of
transactions (including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any service) with any
Affiliate, officers or directors of the Issuer (an "Affiliate Transaction")
unless (i) the terms of such transaction are no less favorable to the Issuer or
such Restricted Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate; (ii) in the event such Affiliate Transaction
involves an aggregate amount in excess of $1.0 million, the terms of such
transaction are set forth in writing and shall have been approved by a majority
of the members of the Board of Directors having no personal stake in such
Affiliate Transaction (and such majority determines that such Affiliate
Transaction satisfies the criteria in clause (i) above) and (iii) in the event
such Affiliate Transaction involves an aggregate amount in excess of $10
million, the Issuer has received a written opinion from a nationally recognized
independent investment banking firm, or nationally recognized accounting or
appraisal firm, that such Affiliate Transaction is fair to the Issuer and its
Restricted Subsidiaries from a financial point of view.
The provisions of the foregoing paragraph shall not prohibit (i) any
Restricted Payment permitted to be made pursuant to Section 4.06, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors and
otherwise permitted under this Indenture, (iii) the grant of stock options or
similar rights to employees and directors of the Issuer in the ordinary course
of business pursuant to plans approved by the Board of Directors, and otherwise
permitted under this Indenture (iv) loans or advances to employees in the
ordinary course of business in accordance with the past practices of the Issuer
or its Restricted Subsidiaries, but in any event not to exceed $1.0 million in
the aggregate outstanding at any one time, (v) the payment of reasonable fees
to directors of the Issuer and its Restricted Subsidiaries who are not
employees of the Issuer or its Restricted Subsidiaries, (vi) any transaction
between the Issuer and a Wholly Owed Subsidiary or between Wholly Owned
Subsidiaries or (vii) the payment of Investment Banking Fees.
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SECTION 4.04 Limitation on Indebtedness
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) except for Permitted Indebtedness; provided, however, that the
Issuer or any Restricted Subsidiary which is a Subsidiary Guarantor may incur
Indebtedness if, at the time of and immediately after giving pro forma effect
to such incurrence of indebtedness and the application of the proceeds
therefrom, the Debt to Operating Cash Flow Ratio would be less than or equal to
7.0 to 1.0 until June 30, 2000, and 6.0 to 1.0 thereafter.
The foregoing limitations will not apply to the incurrence of any of
the following (collectively, "Permitted Indebtedness"), each of which shall be
given independent effect:
(a) Indebtedness under the Securities issued on the date of this
Indenture, the Exchange Securities and this Indenture;
(b) Indebtedness of the Issuer and the Restricted Subsidiaries
outstanding on the Issuance Date and listed on a schedule to this Indenture,
other than Indebtedness described in clause (a), (c), (d) or (e) of this
Section 4.04;
(c) Indebtedness of (x) any Wholly Owned Restricted Subsidiary owed to
or issued to and held by the Issuer or any Restricted Subsidiary and (y) the
Issuer owed to and held by any Wholly Owned Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and performance
of the Issuer's obligations under this Indenture and the Securities; provided,
however, that an incurrence of Indebtedness that is not permitted by this
clause (c) shall be deemed to have occurred upon (i) any sale or other
disposition of any Indebtedness of the Issuer or a Restricted Subsidiary
referred to in this clause (c) to any Person (other than the Issuer or a Wholly
Owned Restricted Subsidiary) such that such Restricted Subsidiary ceases to be
a Restricted Subsidiary or (ii) any designation of a Restricted Subsidiary
which holds Indebtedness of the Issuer as an Unrestricted Subsidiary;
(d) guarantees by any Restricted Subsidiary of Indebtedness of the
Issuer permitted in accordance with the provisions of this Indenture;
(e) Indebtedness of the Issuer and any Subsidiary Guarantor under the
New Senior Credit Agreement in the aggregate principal amount at any one time
outstanding not to exceed $125.0 million;
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(f) indebtedness of the Issuer or any Subsidiary Guarantor to the
extent representing a replacement, renewal, refinancing or extension
(collectively, a "refinancing") of outstanding Indebtedness of the Issuer or
any Subsidiary Guarantor, as the case may be, incurred in compliance with
clause (a), (b), (e) or (g) of this paragraph of this covenant; provided,
however, that (i) Indebtedness of the Issuer may not be refinanced under this
clause (f) with Indebtedness of any Restricted Subsidiary, (ii) any such
refinancing shall not exceed the sum of the principal amount or liquidation
preference or redemption payment value (or, if such Indebtedness provides for a
lesser amount to be due and payable upon a declaration of acceleration thereof
at the time of such refinancing, an amount no greater than such lesser amount)
of the Indebtedness being refinanced plus the amount of accrued interest or
dividends thereon and such reasonable fees and expenses incurred in connection
therewith, (iii) Indebtedness representing a refinancing of Indebtedness of the
Issuer shall not mature prior to the stated maturity of the Indebtedness
refinanced and shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness being
refinanced, (iv) Subordinated Obligations of the Issuer may only be refinanced
with Subordinated Obligations of the Issuer, and (v) Other Pari Passu Debt
which is unsecured may only be refinanced with unsecured Indebtedness, which is
either Other Pari Passu Debt or Subordinated Obligations;
(g) Indebtedness of the Issuer or a Subsidiary Guarantor represented
by Capitalized Lease Obligations, mortgage financings, performance bonds,
purchase money obligations or letters of credit, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Issuer or such Subsidiary Guarantor in an aggregate principal
amount not to exceed $10.0 million at any time outstanding;
(h) Indebtedness incurred and outstanding on or prior to the date on
which such Restricted Subsidiary was acquired by the Issuer (other than
Indebtedness incurred in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Issuer); provided, however, that
on the date of such acquisition and after giving effect thereto, the Debt to
Operating Cash Flow Ratio would have been less than or equal to the Debt to
Operating Cash Flow Ratio immediately prior thereto;
(i) Indebtedness of the Issuer and any Restricted Subsidiary under a
Hedging Agreement related to floating interest on Indebtedness under the New
Senior Credit Agreement provided that such Hedging Agreement is designed solely
to protect against fluctuations in interest rates and does not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in interest rates; and
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(j) In addition to any Indebtedness described in clauses (a) through
(i) above, Indebtedness of the Issuer or any of the Subsidiary Guarantors so
long as the aggregate principal amount of all such indebtedness incurred
pursuant to this clause (j) does not exceed $5.0 million at any one time
outstanding.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (a) through (i) above
or is entitled to be incurred pursuant to the first paragraph of this covenant,
the Issuer shall classify such item of Indebtedness in any manner that complies
with this covenant and such item of Indebtedness shall be treated as having
been incurred pursuant to only one of such clauses or pursuant to the first
paragraph hereof.
SECTION 4.05 Disposition of Proceeds of Asset Sales.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, consummate an Asset Sale unless (i) the Issuer or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such sale
or other disposition at least equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Issuer and evidenced
in a Board Resolution; and (ii) not less than 75% of the consideration received
by the Issuer or such Restricted Subsidiary, as the case may be, is in the form
of cash or Cash Equivalents.
Within 365 days after the receipt of any Net Available Cash from an
Asset Sale, the Issuer or the applicable Restricted Subsidiary may apply such
Net Available Cash to: (A) prepay, repay, redeem or purchase Senior
Indebtedness or Indebtedness of a Subsidiary Guarantor (in each case other than
Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) acquire all
or substantially all of the assets of a Related Business; (C) acquire Voting
Stock of a Related Business from a Person that is not a Subsidiary of the
Issuer; provided, that, (x) after giving effect thereto, the Issuer or its
Restricted Subsidiary owns a majority of such Voting Stock and (y) such
acquisition is otherwise made in accordance with this Indenture, including,
without limitation, the covenant in Section 4.06; or (D) make a capital
expenditure or acquire other long-term assets that are used or useful in a
Related Business. To the extent of the balance of such Net Available Cash after
application in accordance with clauses (A), (B), (C) or (D) ("Excess
Proceeds"), the Issuer shall make an Offer to Holders of the Securities to
purchase Securities and an offer to holders of Pari Passu Indebtedness to
repurchase such Indebtedness pursuant to and subject to the conditions set
forth below.
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Notwithstanding the foregoing provisions, the Issuer and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash
in accordance herewith except to the extent that the aggregate Net Available
Cash from all Asset Sales which are not applied in accordance with this
covenant exceeds $10.0 million. Pending application of Net Available Cash
pursuant to this covenant, such Net Available Cash shall be invested in
Permitted Investments.
For the purposes of this covenant, the following are deemed to be
cash: (x) the assumption by the transferee of Indebtedness of the Issuer (other
than Indebtedness that is subordinated to the Securities and other than any
Disqualified Equity Interest of the Issuer) or Indebtedness of any Restricted
Subsidiary (other than Indebtedness that is subordinated to the Subsidiary
Guarantee of such Restricted Subsidiary and other than any Disqualified Equity
Interest of such Restricted Subsidiary) and the release of the Issuer or such
Restricted Subsidiary from all liability on such Indebtedness in connection
with such Asset Sale; (y) securities received by the Issuer or any Restricted
Subsidiary from the transferee that are converted by the Issuer or such
Restricted Subsidiary into cash within 20 days of the applicable Asset Sale (to
the extent of the cash received); and (z) any liabilities (as shown on the
Issuer's or such Restricted Subsidiary's most recent balance sheet) of the
Issuer or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Securities or any
Subsidiary Guarantee thereof) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Issuer or
any such Restricted Subsidiary from further liability.
When the aggregate amount of Excess Proceeds exceeds $10.0 million or
more, the Issuer will apply the Excess Proceeds to the repayment of the
Securities and any other Pari Passu Indebtedness outstanding with similar
provisions requiring the Issuer to make an offer to purchase such Indebtedness
with the proceeds from any Asset Sale as follows: (A) the Issuer will make an
offer to purchase (an "Offer") from all holders of the Securities in accordance
with the procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Security Amount") equal to the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Securities, and the denominator of which is the sum of the
outstanding principal amount of the Securities and such Pari Passu Indebtedness
(subject to proration in the event such amount is less than the aggregate
Offered Price (as defined herein) of all Securities tendered) and (B) to the
extent required by such Pari Passu Indebtedness to permanently reduce the
principal amount of such Pari Passu Indebtedness, the Issuer will make an offer
to purchase or otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari
Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to the excess
of the Excess Proceeds over the Security Amount; provided that in no event will
the
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Issuer be required to make a Pari Passu Offer in a Pari Passu Debt Amount
exceeding the principal amount of such Pari Passu Indebtedness. The offer price
of the Securities will be payable in cash in an amount equal to 100% of the
principal amount of the Securities plus accrued and unpaid interest, if any, to
the date (the "Offer Date") such Offer is consummated (the "Offered Price"), in
accordance with the procedures set forth in this Indenture. To the extent that
the aggregate Offered Price of the Securities tendered pursuant to the Offer is
less than the Security Amount relating thereto or the aggregate amount of Pari
Passu Indebtedness that is purchased in a Pari Passu Offer is less than the
Pari Passu Debt Amount, the Issuer may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Securities and
Pari Passu Indebtedness surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities to be purchased on a
pro rata basis. Upon the completion of the purchase of all the Securities
tendered pursuant to an Offer and the completion of a Pari Passu Offer, the
amount of Net Available Cash, if any shall be reset at zero.
If the Issuer is required to make an Offer, the Issuer shall mail,
within 30 days following the Reinvestment Date, a notice to the holders of
Securities stating, among other things: (1) that such holders have the right to
require the Issuer to apply the Excess Proceeds to repurchase such Securities
at a purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase; (2) the purchase
date, which shall be no earlier than 30 days and not later than 60 days from
the date such notice is mailed; (3) the instructions, determined by the Issuer,
that each holder must follow in order to have such Securities repurchased; and
(4) the calculations used in determining the amount of Excess Proceeds to be
applied to the repurchase of such Securities.
The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant.
SECTION 4.06 Limitation on Restricted Payments.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, make any Restricted Payment if (i) immediately before or immediately after
giving effect to such Restricted Payment, a Default or Event of Default shall
have occurred and be continuing or shall occur as a consequence of such
Restricted Payment; (ii) immediately after giving effect to such proposed
Restricted Payment, the Issuer would not be able to incur $1.00 of additional
Indebtedness under the Debt to Operating Cash Flow Ratio of the first paragraph
of Section 4.04; or (iii) immediately after giving effect to any such
Restricted Payment, the aggregate of all Restricted Payments which shall have
been made on or after the date of this Indenture (the
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amount of any Restricted Payment, if other than cash, to be based upon the fair
market value thereof on the date of such Restricted Payment) would exceed an
amount equal to the difference between (a) the Cumulative Credit and (b) 1.4
times Cumulative Interest Expense.
"Restricted Payment" means (i) any dividend (whether made in cash,
property or securities) on or with respect to any Equity Interests of the
Issuer or of any Restricted Subsidiary (other than any dividend made to the
Issuer or another Wholly Owned Restricted Subsidiary or any dividend payable in
Equity Interests of the Issuer or any Restricted Subsidiaries); or (ii) any
distribution (whether made in cash, property or securities) on or with respect
to any Equity Interests of the Issuer or of any Restricted Subsidiary (other
than any distribution made to the Issuer or another Wholly Owned Subsidiary or
any distribution payable in Equity Interests of the Issuer or any Restricted
Subsidiary); or (iii) any redemption, repurchase, retirement or other direct or
indirect acquisition of any Equity Interests of the Issuer, or any warrants,
rights or options to purchase or acquire any such Equity Interests or any
securities exchangeable for or convertible into any such Equity Interests; or
(iv) any redemption, repurchase, retirement or other direct or indirect
acquisition for value or other payment of principal, prior to any scheduled
final maturity, scheduled repayment or scheduled sinking fund payment, of any
Subordinated Obligations; or (v) any Investment (other than a Permitted
Investment).
The provisions of the first paragraph of this covenant shall not
prevent (i) the retirement of any of the Issuer's Equity Interests in exchange
for, or out of the proceeds of, the substantially concurrent sale (other than
to a Subsidiary of the Issuer or an employee stock ownership plan or to a trust
established by the Issuer or any Subsidiary of the Issuer for the benefit of
its employees) of Equity Interests of the Issuer (other than any Disqualified
Equity Interest), provided that the Net Cash Proceeds from the issuance are
excluded from clause (i) of the definition of Cumulative Credit; (ii) the
payment of any dividend or distribution on, or redemption of Equity Interests
within 60 days after the date of declaration of such dividend or distribution
or the giving of formal notice of such redemption, if at the date of such
declaration or giving of such formal notice such payment or redemption would
comply with the first paragraph of this covenant and the other provisions of
this Indenture; (iii) investments constituting Restricted Payments made as a
result of the receipt of non-cash consideration from any Asset Sale made
pursuant to and in compliance with the provisions described in Section 4.05;
(iv) the redemption, repurchase, retirement, defeasance or other acquisition of
any Subordinated Obligations in exchange for, or out of Net Cash Proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Issuer or
any employee stock ownership plan or to a trust established by the Issuer or
any Subsidiary of the Issuer (for the benefit of its employees)) of Equity
Interests of the Issuer (other than any Disqualified Equity Interest); and (v)
the making and consummation of (A) an Offer in accordance with the provisions
of this Indenture with any Excess Proceeds or (B) a Change of Control Offer
with respect to the Securities in accordance
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with the provisions of this Indenture; provided however, that in the case of
clause (ii), no Default or Event of Default shall have occurred and be
continuing at the time of such Restricted Payment or as a result thereof. In
determining the aggregate amount of Restricted Payments made on or after the
date of this Indenture, Restricted Payments made pursuant to clause (ii) shall
be included in such calculation.
SECTION 4.07 Corporate Existence.
Subject to Article Five, the Issuer shall do or shall cause to be done
all things necessary to preserve and keep in full force and effect its
corporate or partnership existence, as the case may be, and the corporate,
partnership or other existence of each of the Restricted Subsidiaries in
accordance with the respective organizational documents of each such Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuer and the Restricted Subsidiaries.
SECTION 4.08 Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Issuer or any of its
Restricted Subsidiaries or upon the income, profits or property of the Issuer
or any of its Restricted Subsidiaries and (2) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become a
material liability, or Lien (other than a Permitted Lien) upon the property, of
the Issuer or any of its Restricted Subsidiaries; provided, however, that the
Issuer shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves or other provision has been
made.
SECTION 4.09 Notice of Defaults.
(a) In the event that any Indebtedness of the Issuer or any of its
Restricted Subsidiaries is declared due and payable before its maturity because
of the occurrence of any default (or any event which, with notice or lapse of
time, or both, would constitute such a default) under such Indebtedness, the
Issuer shall promptly give written notice to the Trustee of such declaration,
the status of such default or event and what action the Issuer is taking or
proposes to take with respect thereto.
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(b) Within five business days of the occurrence of any Default, the
Issuer shall promptly deliver an Officer's Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10 Maintenance of Properties.
The Issuer shall cause all material properties owned by or leased to
it or any of its Restricted Subsidiaries and used or useful in the conduct of
its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Issuer may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
SECTION 4.11 Compliance Certificate.
The Issuer shall deliver to the Trustee on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Issuer stating that a review of the activities of the Issuer has been
made under the supervision of the signing officers with a view to determining
whether a Default or Event of Default has occurred and whether or not the
signers know of any Default or Event of Default that occurred during such
fiscal year. If they do know of such a Default or Event of Default, the
certificate shall describe all such Defaults or Events of Default, their status
and the action the Issuer is taking or proposes to take with respect thereto.
SECTION 4.12 Provision of Financial Information.
Whether or not the Issuer is subject to Sections 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Issuer shall file with
the SEC so long as the Securities are outstanding the annual reports, quarterly
reports and other periodic reports which the Issuer would have been required to
file with the SEC pursuant to such Sections 13(a) or 15(d) or any successor
provision thereto if the Issuer was so subject on or prior to the respective
dates (the "Required Filing Dates") by which the Issuer would have been
required so to file such documents if the Issuer was so subject. The Issuer
shall also in any event (a) within 15 days of each Required Filing Date
(whether or not permitted or required to file with the SEC) (i) transmit or
cause to be transmitted by mail to all holders of Securities, as their names
and addresses appear in the register maintained by the Registrar, without cost
to such holders, and (ii) file with the Trustee, copies of the annual reports,
quarterly reports and other documents
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which the Issuer is required to file with the SEC pursuant to the preceding
sentence or, if such filing is not so permitted, information and data of a
similar nature, and (b) if, notwithstanding the preceding sentence, filing such
documents by the Issuer with the SEC is not permitted by SEC practice or
applicable law or regulations, promptly upon written request supply copies of
such documents to any Holder. The Issuer shall not be obligated to file any
such reports with the SEC if the SEC does not permit such filings for all
companies similarly situated other than due to any action or inaction by the
Issuer. The Issuer will also comply with ss.314(a) of the TIA. In addition, for
so long as any of the Securities remain outstanding and prior to the later of
the consummation of the Exchange Offer and the effectiveness of the Shelf
Registration Statement, if required, the Issuer and each Subsidiary Guarantor
shall furnish to holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act of 1933, as amended.
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.
The Issuer and each of the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law, which would prohibit
or forgive the Issuer or such Subsidiary Guarantor from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Issuer and each of the Subsidiary Guarantors
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.14 Change of Control.
Upon the occurrence of a Change of Control, each holder of Securities
shall have the right to require the Issuer to repurchase all or any part of
such holder's Securities pursuant to an offer described below (the "Change of
Control Offer") at a purchase price equal to 101% of the principal amount
thereof plus any accrued and unpaid interest, if any, thereon to the date of
repurchase (the "Change of Control Payment").
Within 30 days of the occurrence of a Change of Control, the Issuer
shall send by first-class mail, postage prepaid, to the Trustee and to each
holder of the Securities, at the address appearing in the register of
Securities maintained by the Registrar, a notice stating: (i) that the Change
of Control Offer is being made pursuant to this covenant and that all
Securities tendered
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will be accepted for payment; (2) the purchase price and the purchase date,
which shall be a business day no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the "Change of Control Payment Date"); (3)
that any Security not tendered will continue to accrue interest; (4) that,
unless the Issuer defaults in the payment of the Change of Control Payment, any
Securities accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date; (5) that
holders accepting the offer to have their Securities purchased pursuant to a
Change of Control Offer will be required to surrender the Securities to the
Paying Agent at the address specified in the notice prior to the close of
business on the business day preceding the Change of Control Payment Date; (6)
that holders will be entitled to withdraw their acceptance if the Paying Agent
receives, not later than the close of business on the third 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 of the Securities delivered for purchase, and a statement that such
holder is withdrawing its election to have such Securities purchased; (7) that
holders whose Securities are being purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered, provided that each Security purchased and each such new
Security issued shall be in an original principal amount in denominations of
$1,000 and integral multiples thereof; (8) any other procedures that a holder
must follow to accept a Change of Control Offer or effect withdrawal of such
acceptance; and (9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuer shall, to the extent
lawful (i) accept for payment Securities or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Securities
so accepted together with an Officer's Certificate stating the Securities or
portions thereof tendered to the Issuer. The Paying Agent shall promptly mail
to each holder of Securities so accepted payment in an amount equal to the
purchase price for such Securities, and the Issuer shall execute and issue, and
the Trustee shall promptly authenticate and mail to such holder, a new Security
equal in principal amount to any unpurchased portion of the Securities
surrendered; provided that each such new Security shall be issued in an
original principal amount in denominations of $1,000 and integral multiples
thereof. The Issuer will send to the Trustee and the holders of Securities on
or as soon as practicable after the Change of Control Payment Date a notice
setting forth the results of the Change of Control Offer.
The Issuer will not be required to make a Change of Control Offer if a
third party makes the Change of Control Offer in the manner, at the time and
otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the
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Issuer and purchases all Securities or portions thereof validly tendered and
not withdrawn under such Change of Control Offer.
The Issuer will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant.
SECTION 4.15 Limitation on Senior Subordinated Indebtedness.
(a) The Issuer shall not, directly or indirectly, Incur any
Indebtedness that by its terms would expressly rank senior in right of payment
to the Securities and expressly rank subordinate in right of payment to any
Senior Indebtedness.
(b) The Issuer shall not permit any Subsidiary Guarantor to and no
Subsidiary Guarantor will, directly or indirectly, Incur any Indebtedness that
by its terms would expressly rank senior in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor and expressly rank subordinate in right
of payment to any Senior Guarantor Indebtedness of such Subsidiary Guarantor.
SECTION 4.16 Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends in cash or otherwise
or make any other distributions to the Issuer or any Restricted Subsidiary on
its Equity Interests; (b) pay any Indebtedness owed to the Issuer or any
Restricted Subsidiary; (c) make loans or advances or guarantee any such loans
or advances, to the Issuer or any Restricted Subsidiary; (d) transfer any of
its properties or assets to the Issuer or any Restricted Subsidiary; (e) grant
Liens on the assets of the Issuer or any Restricted Subsidiary in favor of the
holders of the Securities; or (f) guarantee the Securities or any renewals or
refinancings thereof (any of the actions described in clauses (a) through (f)
above is referred to herein as a "Specified Action"), except for (i) such
encumbrances or restrictions arising by reason of Acquired Indebtedness of any
Restricted Subsidiary existing at the time such Person became a Restricted
Subsidiary, provided that such encumbrances or restrictions were not created in
anticipation of such Person becoming a Restricted Subsidiary and are not
applicable to the Issuer or any other Restricted Subsidiary, (ii) such
encumbrances or restrictions arising under refinancing Indebtedness permitted
by clause (f) of the second paragraph under Section 4.04; provided that the
terms and conditions of any such restrictions
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are not less favorable to the holders of Securities than those under the
Indebtedness being refinanced, (iii) customary provisions restricting the
assignment of any contract of the Issuer or any Restricted Subsidiary, (iv)
with respect to clause (d) above, restrictions in security agreements or
mortgages securing Indebtedness of a Restricted Subsidiary to the extent the
restriction restricts the transfer of property subject to such security
agreement or mortgage; (v) restrictions pursuant to the New Senior Credit
Agreement; and (vi) restrictions pursuant to the Discount Notes and the related
indenture.
SECTION 4.17 Designation of Unrestricted Subsidiaries.
The Issuer may designate after the Issuance Date any Subsidiary of the
Issuer (other than a Subsidiary Guarantor) as an "Unrestricted Subsidiary"
under this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation;
(b) the Issuer would be permitted to make an Investment (other than a
Permitted Investment) at the time of Designation (assuming the effectiveness of
such Designation) pursuant to the first paragraph of Section 4.06 in an amount
(the "Designation Amount") equal to the greater of (1) the net book value of
the Issuer's interest in such Subsidiary calculated in accordance with GAAP or
(2) the Fair Market Value of the Issuer's interest in such Subsidiary as
determined in good faith by the Issuer's Board of Directors;
(c) the Issuer would be permitted under this Indenture to Incur $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the Debt
to Operating Cash Flow Ratio of the first paragraph of Section 4.04 at the time
of such Designation (assuming the effectiveness of such Designation);
(d) such Unrestricted Subsidiary does not own any Equity Interest in
any Restricted Subsidiary of the Issuer which is not simultaneously being
designated an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, provided that an Unrestricted Subsidiary may provide a Subsidiary
Guarantee for the Securities; and
(f) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Issuer or any
Restricted Subsidiary unless
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the terms of any such agreement, contract, arrangement or understanding are no
less favorable to the Issuer or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the Issuer
or, in the event such condition is not satisfied, the value of such agreement,
contract, arrangement or understanding to such Unrestricted Subsidiary shall be
deemed a Restricted Payment.
In the event of any such Designation, the Issuer shall be deemed to
have made an Investment constituting a Restricted Payment pursuant Section 4.06
for all purposes of this Indenture in the Designation Amount.
The Issuer shall not and shall not cause or permit any Restricted
Subsidiary to at any time (x) provide credit support for, or subject any of its
property or assets (other than the Equity Interest of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) (other than permitted Investments in Unrestricted Subsidiaries)
or (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary. For purposes of the foregoing, the Designation of a
Subsidiary of the Issuer as an Unrestricted Subsidiary shall be deemed to be
the designation of all of the Subsidiaries of such Subsidiary as Unrestricted
Subsidiaries.
The Issuer may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time of and
after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred for all purposes of this Indenture;
and
(c) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would be Permitted
Indebtedness), immediately after giving effect to such proposed Revocation, and
after giving pro forma effect to the incurrence of any such Indebtedness of
such redesignated Subsidiary as if such Indebtedness was incurred on the date
of the Revocation, the Issuer could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.04.
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All Designations and Revocations must be evidenced by a resolution of
the Board of Directors of the Issuer delivered to the Trustee certifying
compliance with the foregoing provisions.
SECTION 4.18 Limitation on Liens.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, to incur any Indebtedness secured by a Lien against
or on any of its property or assets now owned or hereafter acquired by the
Issuer or any Restricted Subsidiary unless contemporaneously therewith
effective provision is made to secure the Securities equally and ratably with
such secured Indebtedness. This restriction does not, however, apply to
Indebtedness secured by (i) Liens securing the Indebtedness under the New
Senior Credit Agreement; (ii) Liens, if any, in effect on the date of this
Indenture; (iii) Liens in favor of governmental bodies to secure progress or
advance payments; (iv) Liens on Equity Interests or Indebtedness existing at
the time of the acquisition thereof (including acquisition through merger or
consolidation), provided that such Liens were not incurred in anticipation of
such acquisition; (v) Liens securing the Securities; (vi) Liens securing
Indebtedness of the Issuer in an amount not to exceed $5.0 million at any time
outstanding; (vii) Other Permitted Liens; and (viii) any extension, renewal or
replacement of any Lien referred to in the foregoing clauses (i) through (vii),
inclusive but only to the extent such liens do not extend to any other property
or assets (other than improvements).
SECTION 4.19 Limitation on Guarantees of Certain Indebtedness.
The Issuer shall not (a) permit any Restricted Subsidiary to guarantee
any Indebtedness of the Issuer other than the Securities (the "Other
Indebtedness"), or (b) pledge any intercompany Indebtedness representing
obligations of any of its Restricted Subsidiaries to secure the payment of
Other Indebtedness, in each case unless such Restricted Subsidiary, the Issuer
and the Trustee execute and deliver a supplemental indenture causing such
Restricted Subsidiary to guarantee the Issuer's obligations under this
Indenture and the Securities to the same extent that such Restricted Subsidiary
guaranteed the Issuer's obligations under the Other Indebtedness (including
waiver of subrogation, if any except that (A) such guarantee need not be
secured unless required pursuant to Section 4.18 and (B) if such Indebtedness
is by its terms expressly subordinated to the Securities, any such assumption,
guarantee or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated to such Restricted Subsidiary's guarantee of
the Securities at least to the same extent as such Indebtedness is subordinated
to the Securities). Thereafter, such Restricted Subsidiary shall be a
Subsidiary Guarantor for all purposes of this Indenture.
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Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary of the Securities shall provide by its terms that it (and
all Liens securing the same) shall be automatically and unconditionally
released and discharged upon any sale, exchange or transfer, to any Person not
an Affiliate of the Issuer, of all of the Issuer's Equity Interest in, or all
of or substantially all the assets of, such Restricted Subsidiary which
transaction is permitted by the terms of this Indenture and such Restricted
Subsidiary is released from all guarantees, if any, by it of other Indebtedness
of the Issuer or any Restricted Subsidiaries and (with respect to any
Subsidiary Guarantees created after the date of this Indenture) the release by
the holders of the Indebtedness of the Issuer described in clause (a) above of
their security interest or their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under
such Indebtedness), at such time as (A) no other Indebtedness of the Issuer has
been secured or guaranteed by such Restricted Subsidiary, as the case may be,
or (B) the holders of all such other Indebtedness which is secured or
guaranteed by such Restricted Subsidiary also release their security interest
in or guarantee by such Restricted Subsidiary (including any deemed release
upon payment in full of all obligations under such Indebtedness).
SECTION 4.20 Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
The Issuer (a) shall not, and shall not permit any Restricted
Subsidiary of the Issuer to, directly or indirectly, transfer, convey, sell,
lease or otherwise dispose of any Equity Interest of any Restricted Subsidiary
to any Person (other than to the Issuer or a Wholly Owned Restricted
Subsidiary), unless (i) such transfer, conveyance, sale, lease or other
disposition is of all the Equity Interest of such Restricted Subsidiary and
(ii) the Net Cash Proceeds from such transfer conveyance, sale, lease or other
disposition are applied in accordance with Section 4.05 and (b) will not permit
any Restricted Subsidiary to issue any of its Equity Interest (other than, if
required under applicable law, shares of its Equity Interest constituting
directors' qualifying shares) to any Person other than to the Issuer or Wholly
Owned Restricted Subsidiary.
SECTION 4.21 Limitation on Sale/Leaseback Transactions.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with respect to any property
unless (i) the Issuer or such Restricted Subsidiary would be entitled to (A)
incur Indebtedness in an amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction pursuant to Section 4.04 and (B)
create a Lien on such property securing such Attributable Indebtedness without
equally and ratably securing the Securities pursuant to the covenant described
under Section 4.18; (ii) the
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net cash proceeds received by the Issuer or any Restricted Subsidiary in
connection with such Sale/Leaseback Transaction are at least equal to the fair
value (as determined in good faith by the Board of Directors of the Issuer and
certified in an Officer's Certificate to the Trustee) of such property and
(iii) the transfer of such property is permitted by, and the Issuer or such
Restricted Subsidiary applies the proceeds of such transaction in compliance
with Section 4.05.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01 Merger, Sale of Assets, etc.
The Issuer shall not, in a single transaction or through a series of
related transactions, consolidate or merge with or into, or sell, assign,
convey, lease, transfer or otherwise dispose of all or substantially all of its
assets to, another Person or a group of Persons, or permit any Restricted
Subsidiary to do so if such transaction would result in the transfer of all or
substantially all of the assets of the Issuer on a consolidated basis unless
(i) either (A) the Issuer shall be the continuing Person, or (B) the Person
formed by or surviving any such consolidation or merger (if other than the
Issuer), or to which any such transfer shall have been made, is a corporation,
limited liability company or limited partnership organized and existing under
the laws of the United States, any State thereof or the District of Columbia;
(ii) the surviving Person (if other than the Issuer) expressly assumes by
supplemental indenture all the obligations of the Issuer under the Securities
and this Indenture; (iii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing; (iv)
immediately after giving effect to such transaction, the surviving Person would
be able to incur $1.00 of additional Indebtedness under the Debt to Operating
Cash Flow Ratio of Section 4.04; and (v) the Issuer shall have delivered to the
Trustee prior to the proposed transaction an Officer's Certificate and an
Opinion of Counsel, each stating that the proposed consolidation, merger or
transfer and such supplemental indenture will comply with this Indenture.
In addition, each Subsidiary Guarantor shall not, and the Issuer shall
not permit a Subsidiary Guarantor to, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any
other Person (other than the Issuer or any Subsidiary Guarantor) or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially
all of its properties and assets to any Person or group of Persons (other than
the Issuer or any Subsidiary Guarantor), unless clauses (i)-(v) above are
satisfied with respect to such Subsidiary Guarantor (rather than the Issuer).
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SECTION 5.02 Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Issuer or any
Subsidiary Guarantor, as the case may be, is not the Surviving Person and the
Surviving Person is to assume all the Obligations of such Issuer or any such
Subsidiary Guarantor, as the case may be, under the Securities, the
Registration Rights Agreement and this Indenture pursuant to a supplemental
indenture, such Surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of, such Issuer or such Subsidiary
Guarantor, as the case may be, and such Issuer or such Subsidiary Guarantor, as
the case may be, shall be discharged from its Obligations under this Indenture,
the Securities or its Subsidiary Guarantee, as the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following shall be an "Event of Default":
(a) failure to pay interest on any Security when the same becomes due
and payable and such Default continues for a period of 30 days, whether or not
such payment is prohibited by Article Eight hereof;
(b) failure to pay the principal (or premium, if any, on) of any
Securities when the same becomes due and payable at maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise, whether or
not such payment is prohibited by Article Eight hereof;
(c) failure to perform or comply with any of the provisions of Sections
5.01 or 5.02;
(d) failure to perform or comply with any of the provisions of
Sections 4.03, 4.04, 4.06, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 or 4.20 for
30 days after notice;
(e) failure to observe or perform any other covenant, warranty or
agreement contained in the Securities or this Indenture, and the Default
continues for the period and after the notice specified in the last paragraph
of this Section 6.01;
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(f) a default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Issuer or any Restricted Subsidiary
having an outstanding principal amount of $5.0 million or more individually or
in the aggregate that has resulted in the acceleration of the payment of such
Indebtedness or the failure to pay principal when due at the stated maturity of
any such Indebtedness;
(g) any Subsidiary Guarantee ceases to be in full force and effect or
is declared null and void and unenforceable or found to be invalid or any
Subsidiary Guarantor denies its liability under its Subsidiary Guarantee (other
than by reason of a release of such Subsidiary Guarantor from its Subsidiary
Guarantee in accordance with the terms of this Indenture and such Subsidiary
Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
(h) either of the Issuer or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(4) makes a general assignment for the benefit of its
creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Issuer or any Restricted
Subsidiary in an involuntary case or proceeding,
(2) appoints a Custodian of the Issuer or any Restricted
Subsidiary or for all or substantially all of its
property, or
(3) orders the liquidation of the Issuer or any Restricted
Subsidiary,
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and in each case the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such order or decree
is appealed and dismissed on appeal then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to have been cured;
or
(j) there shall have been any judgment or judgments against the Issuer
or any Restricted Subsidiary in an amount of $5.0 million or more (net of any
amounts covered by reputable and creditworthy insurance companies) and either
(A) an enforcement proceeding has been commenced by any creditor upon such
judgement or decree or (B) such judgement or decree remains outstanding for a
period of 60 days following such judgement and is not discharged waived or
stayed within 10 days of after notice.
A Default under clause (e) is not an Event of Default until the
Trustee notifies the Issuer, or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities notify the Issuer and the
Trustee, of the Default in writing and the Issuer does not cure the Default
within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested by the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding. When a Default is cured, it ceases.
SECTION 6.02 Acceleration.
If an Event of Default with respect to the Securities (other than an
Event of Default specified in clause (h) or (i) of Section 6.01 with respect to
the Issuer) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Securities by notice in
writing to the Issuer (and to the Trustee if given by the Holders) may declare
the unpaid principal of and accrued and unpaid interest to the date of
acceleration on all the outstanding Securities to be due and payable
immediately and, upon any such declaration, such principal amount and accrued
and unpaid interest shall become immediately due and payable.
If an Event of Default specified in clause (h) or (i) of Section 6.01
with respect to the Issuer occurs all unpaid principal of and accrued and
unpaid interest on the outstanding Securities shall ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder thereof.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due in respect of the Securities has been obtained by
the Trustee, the Holders of not
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less than a majority in aggregate principal amount of the Securities then
outstanding by written notice to the Issuer and the Trustee may rescind and
annul such declaration and its consequences if (a) the Issuer has paid or
deposited with the Trustee a sum sufficient to pay (i) all sums paid or
advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the trustee, its agents and counsel,
(ii) all overdue interest on all Securities then outstanding, (iii) the
principal of and premium, if any, on any Securities then outstanding which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities and (iv) to the extent that payment
of such interest is lawful, interest upon overdue interest at the rate borne by
the Securities; (b) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction; and (c) all Events of Default,
other than the non-declaration of acceleration, have been cured or waived as
provided in this Indenture. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04 Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the then outstanding Securities, on behalf of all
the Holders, by written notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium on, if any, or interest on any Security as specified in
clauses (a) and (b) of Section 6.01 or a Default in respect of any term or
provision of this Indenture that may not be amended or modified without the
consent of each Holder affected as provided in Section 10.02. The Issuer shall
deliver to the Trustee an Officer's Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of
such consents. In
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case of any such waiver, the Issuer, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the
Securities, respectively. This paragraph of this Section 6.04 shall be in lieu
of ss.316(a)(1)(B) of the TIA and such ss.316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.05 Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount
of the then outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder,
or that may involve the Trustee in personal liability; provided, however, that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss
or expense caused by taking such action or following such direction. This
Section 6.05 shall be in lieu of ss.316(a)(1)(A) of the TIA, and such
ss.316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and
the Securities, as permitted by the TIA.
SECTION 6.06 Limitation on Suits.
Subject to Section 6.07, a Securityholder may not pursue any remedy
with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
then outstanding Securities make a written request to the Trustee to pursue a
remedy;
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(c) such Holder or Holders 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 15 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 15-day period the Holders of a majority in principal
amount of the then outstanding Securities (excluding Affiliates of the Issuer)
do not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium on, if any, or interest
on the Security, on or after the respective due dates expressed in the Security
(subject to Articles Eight and Twelve), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Issuer (or
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any other obligor upon the Securities), their creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
(a) First: to the Trustee for amounts due under Section 7.07;
(b) Second: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
(c) Third: to the Issuer.
The Trustee, upon prior written notice to the Issuer, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 shall not
apply to a suit by the Trustee, a suit by a Holder or group
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of Holders of more than 10% in aggregate principal amount of the outstanding
Securities, or to any suit instituted by any Holder for the enforcement or the
payment of the principal or interest on any Securities on or after the
respective due dates expressed in the Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the
performance of such duties as are specifically set
forth herein and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
conforming to the requirements of this Indenture;
however, the Trustee shall examine the certificates
and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.05.
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(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity reasonably satisfactory
to it against such risk, liability, loss, fee or expense which might be incurred
by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Issuer. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on an Officer's Certificate or Opinion of
Counsel.
(c) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(d) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
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security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee may execute any of its trusts or powers or perform any
duties under this Indenture either directly or by or through agents or
attorneys, and may in all cases pay, subject to reimbursement as provided in
Section 7.07, such reasonable compensation as it deems proper to all such
agents and attorneys reasonably employed or retained by it, and the Trustee
shall not be responsible for any misconduct or negligence of any agent or
attorney appointed with due care by it.
(h) The Trustee is not required to take notice or deemed to have
notice of any default or Event of Default hereunder, except Events of Default
under Section 6.01(a) and 6.01(b), unless a Trust Officer of the Trustee has
actual knowledge thereof or has received notice in writing of such default or
Event of Default from the Issuer or from the holders of at least 25% in
aggregate principal amount of the Outstanding Securities, and in the absence of
any such notice, the Trustee may conclusively assume that no such default or
Event of Default exists.
(i) The Trustee is not required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers under
this Indenture.
(j) In the event the Trustee receives inconsistent or conflicting
requests and indemnity from two or more groups of holders of Securities, each
representing less than a majority in aggregate principal amount of such
securities outstanding, pursuant to the provisions of this Indenture, the
Trustee, in its sole discretion, may determine what action, if any, shall be
taken.
(k) The Trustee's immunities and protections from liability and its
right to indemnification in connection with the performance of its duties under
this Indenture shall extend to the Trustee's officers, directors, agents,
attorneys and employees. Such immunities
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and protections and right to indemnification shall survive the Trustee's
resignation or removal, the discharge of this Indenture and final payment of the
Securities.
(l) The permissive right of the Trustee to take the actions permitted
by this Indenture shall not be construed as an obligation or duty to do so.
(m) Except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility for any information in any
offering memorandum or other disclosure material distributed with respect to
the Securities, and the Trustee shall have no responsibility for compliance
with any state or federal securities laws in connection with the Securities.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee. The
Trustee, in its commercial banking or in any other capacity, may also engage in
or be interested in any financial or other transaction with the Issuer and may
act as depository, trustee or agent for any committee of Securityholders
secured hereby or other obligations of the Issuer as freely as if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11. The provisions of this Section 7.03 shall
apply to Affiliates of the Trustee and any agent.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Issuer's use of the proceeds from the Securities,
and it shall not be responsible for any statement of the Issuer in this
Indenture or any document issued in connection with the sale of Securities or
any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 30 days
after the occurrence thereof. Except in the case of a Default or an Event of
Default in payment of principal of or interest on any Security or a Default or
Event of Default in complying with Section 5.01, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that
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withholding the notice is in the interest of Securityholders. This Section 7.05
shall be in lieu of the proviso to ss.315(b) of the TIA and such proviso to
ss.315(b) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
SECTION 7.06 Reports by Trustee to Holders.
If required by TIA ss.313(a), within 60 days after each June 15
beginning with the June 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such June 15 that
complies with TIA ss.313(a); provided, however, that, if no event under TIA
ss.313(a) has occurred in a 12 month period, no such report need be
transmitted.
The Trustee also shall comply with TIA ss.313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
The Issuer shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.07 Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such
compensation as the Issuer and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Issuer shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.01 hereof.
The Issuer shall indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to its
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own negligence or bad faith. The Trustee shall notify the Issuer promptly of any
claim asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Issuer promptly shall not relieve the
Issuer of its obligations hereunder except to the extent that the Issuer is
materially prejudiced thereby. The Issuer shall defend the claim and the Trustee
shall cooperate in the defense (and may employ its own counsel) at the Issuer's
expense; provided, however, that the Issuer's reimbursement obligation with
respect to counsel employed by the Trustee will be limited to the reasonable
fees of such counsel. The Issuer need not pay for any settlement made without
its written consent, which consent shall not be unreasonably withheld. The
Issuer need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee as a result of the violation of this Indenture by the
Trustee.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except (i) money
or property held in trust to pay principal of or interest on particular
Securities, and (ii) any money or property held in trust pursuant to Article
Eight or Article Twelve.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Issuer's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuer's obligations pursuant to
Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuer in
writing. The Holders of a majority in principal amount of the then outstanding
Securities may remove the Trustee by so notifying the Trustee and the Issuer in
writing and may appoint a successor Trustee with the Issuer's consent. The
Issuer 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 under any
Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or
its property; or
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(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuer shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 10% in aggregate principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Seven shall become effective until
the acceptance of appointment by the successor Trustee under Section 7.08.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further
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act shall be the successor Trustee, provided such corporation shall be otherwise
qualified and eligible under this Article Seven.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA ss.ss.310(a)(1) and 310(a)(2). The Trustee shall have
a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA ss.310(b), the
Trustee and the Issuer shall comply with the provisions of TIA ss.310(b). If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinbefore specified in this Article Seven.
SECTION 7.11 Preferential Collection of Claims Against Issuer.
The Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss.311(a) to the extent indicated therein.
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01 Securities Subordinated to Senior Indebtedness.
The Issuer covenants and agrees, and the Trustee and each Holder of
the Securities by his acceptance thereof likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities by the Issuer (including without
limitation under Article Three, Section 4.01 and Article Five) shall, to the
extent and in the manner set forth in this Article, be subordinated and junior
in right of payment to the prior payment in full in cash of all amounts payable
under existing and future Senior Indebtedness.
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SECTION 8.02 No Payment on Securities in Certain Circumstances.
(a) Upon the occurrence and during the continuance of any default in
the payment of principal of, premium, if any, or interest on any Senior
Indebtedness, beyond any applicable grace period with respect thereto (a
"Payment Default"), no payment or distribution of any assets of the Issuer of
any kind or character may be made on account of the Securities unless and until
such Payment Default has been cured, waived or has ceased to exist or such
Senior Indebtedness shall have been discharged or paid in full in cash or the
benefits of this sentence shall have been waived in writing by or on behalf of
the holders of such Senior Indebtedness.
(b) Upon the occurrence and during the continuance of any default
(other than a Payment Default) with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated (a
"Non-Payment Default") and after the receipt by the Trustee and the Issuer from
a Senior Representative of written notice of such Non-Payment Default, no
payment (other than payments previously made pursuant to the provisions in
Article Nine) or distribution of any assets of the Issuer of any kind or
character (other than common stock or securities convertible into common stock
and other than Indebtedness which is subordinated to the Designated Senior
Indebtedness at least to the same extent the Securities are subordinated to
such Designated Senior Indebtedness) may be made by the Issuer on account of
the principal of, premium, if any, or interest on, the Securities or on account
of the purchase, redemption, defeasance or other acquisition of, or in respect
of, the Securities for the period specified below (the "Payment Blockage
Period").
The Payment Blockage Period shall commence upon the receipt of notice
of the NonPayment Default by the Trustee and the Issuer from a Senior
Representative and shall end on the earliest of (i) the 179th day after such
commencement, (ii) the date on which such NonPayment Default (and all other
Non-Payment Defaults as to which notice is given after such Payment Blockage
Period is initiated) is cured, waived or ceases to exist or on which such
Designated Senior Indebtedness is discharged or paid in full in cash or (iii)
the date on which such Payment Blockage Period (and all Non-Payment Defaults as
to which notice is given after such Payment Blockage Period is initiated) shall
have been terminated by written notice to the Issuer or the Trustee from the
Senior Representative initiating such Payment Blockage Period, after which, in
the case of clauses (i), (ii) and (iii), the Issuer will promptly resume making
any and all required payments in respect of the Securities, including any
missed payments. In no event will a Payment Blockage Period extend beyond 179
days from the date of the receipt by the Issuer or the Trustee of the notice
initiating such Payment Blockage Period (such 179-day period referred to as the
"Initial Period"). Any number of notices of Non-Payment Defaults may be given
during the Initial Period; provided that during any period of 365 consecutive
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days only one Payment Blockage Period, during which payment of principal of, or
interest on, the Securities may not be made, may commence and the duration of
such period may not exceed 179 days. No Non-Payment Default with respect to
Designated Senior Indebtedness that existed or was continuing on the date of the
commencement of any Payment Blockage Period will be, or can be, made the basis
for the commencement of a second Payment Blockage Period, whether or not within
a period of 365 consecutive days, unless such default has been cured or waived
for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 8.02(a) or 8.02(b), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Designated
Senior Indebtedness or their respective agents or representatives, or to the
trustee or trustees under any indenture pursuant to which any of such
Designated Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that, within a reasonable period
following written notice from the Trustee to the holders of such Designated
Senior Indebtedness (and their agent, representative or representatives or a
trustee, if any) that such prohibited payment has been made, the holders of the
Designated Senior Indebtedness (or their representative or representatives, or
a trustee) notify the Trustee in writing of the amounts then due and owing on
the Designated Senior Indebtedness, if any, and only the amounts specified in
such notice to the Trustee shall be paid to the holders of such Designated
Senior Indebtedness.
SECTION 8.03 Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Issuer of any kind or character, whether in cash, property or securities
(including any payment made to Securityholders under the terms of Indebtedness
subordinated to the Securities), upon any dissolution or winding-up or total or
partial liquidation or reorganization of the Issuer, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all Senior Indebtedness shall first be paid in full in cash before the Holders
of the Securities or the Trustee on behalf of such Holders shall be entitled to
receive any payment by or on behalf of the Issuer of the principal of or
interest on or other amounts with respect to the Securities, or any payment to
acquire any of the Securities for cash, property or securities, or any
distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by, or on behalf of, the Issuer of
the principal of or interest on or other amounts with respect to the Securities
upon any such dissolution or winding-up or liquidation or reorganization, any
payment or distribution of assets or securities of the Issuer of any kind or
character, whether in cash, property or securities (including any payment made
to Securityholders under the terms of Indebtedness subordinated to the
Securities), to which the
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Holders of the Securities or the Trustee on their behalf would be entitled, but
for the subordination provisions of this Indenture, shall be made by the Issuer
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their agents or
representatives or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full in cash after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Issuer of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder of Securities at
a time when such payment or distribution is prohibited by Section 8.03(a) and
before all Obligations in respect of Senior Indebtedness are paid in full in
cash, such payment or distribution shall be received and held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders) or their respective agents,
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in
cash after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness.
The consolidation of the Issuer with, or the merger of the Issuer with
or into, another corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 8.04 Subrogation.
Upon the payment in full in cash of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Issuer made on such Senior Indebtedness until the principal
of and interest on the Securities shall be paid in full; and, for
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the purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee on their behalf would be entitled except for
the provisions of this Article, and no payment over pursuant to the provisions
of this Article to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee on their behalf shall, as between the Issuer, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Issuer to or on account of the
Senior Indebtedness. It is understood that the provisions of this Article are,
and are intended, solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment
of all amounts payable under Senior Indebtedness, then and in such case, the
Holders of the Securities shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full in
cash of such Senior Indebtedness.
SECTION 8.05 Obligations of Issuer Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Issuer and the
Holders of the Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Issuer other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of the Senior Indebtedness in respect of cash, property or securities
of the Issuer received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.02 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Indebtedness then due
and payable shall first be paid in full in cash before the Holders of the
Securities or the
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Trustee are entitled to receive any direct or indirect payment from the Issuer
of principal of or interest or any other amounts on the Securities.
SECTION 8.06 Notice to Trustee.
The Issuer shall give prompt written notice to the Trustee of any fact
known to the Issuer which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article.
The Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Indebtedness or of any other
facts which would prohibit the making of any payment to or by the Trustee unless
and until the Trustee shall have received notice in writing at its Corporate
Trust Office to that effect signed by an Officer of the Issuer, or by a holder
of Senior Indebtedness or trustee or agent therefor; and prior to the receipt of
any such written notice, the Trustee shall, subject to Article Seven, be
entitled to assume that no such facts exist; provided that if the Trustee shall
not have received the notice provided for in this Section at least one Business
Day prior to the date upon which by the terms of this Indenture any moneys shall
become payable for any purpose (including, without limitation, the payment of
the principal of or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from the Issuer and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 8.06 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 8.03. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of, or other representative of, such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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SECTION 8.07 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 8.08 Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Sections 8.02(c) and 8.03(b)).
SECTION 8.09 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior
Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce the subordination terms as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Issuer or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Issuer with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or otherwise be charged
with. The provisions of this Article are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
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SECTION 8.10 Securityholders Authorize Trustee to
Effectuate Subordination of Securities.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Issuer (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) the filing of a claim for the unpaid balance of its or
his Securities in the form required in those proceedings.
SECTION 8.11 This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (a) or (b) of Section 6.01.
SECTION 8.12 Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 8.13 No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness or add subsidiaries of the Issuer as
additional guarantors or borrowers thereunder; (d) exercise or refrain from
exercising any rights against the Issuer and any other Person; or (e) modify,
amend, restate, restructure, supplement or refinance Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
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Indebtedness is outstanding or secured (provided that no such modification,
amendment, restatement, restructuring, supplement or refinancing shall conflict
with the covenants in Sections 4.04, 4.05, 4.06, 4.15, 4.16 or 4.19).
SECTION 8.14 Subordination Provisions Not Applicable to Money Held
in Trust for Securityholders; Payments May Be Paid
Prior to Dissolution.
All money and United States Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Article Nine (and not in
contravention of the terms of this Article Eight) shall be for the sole benefit
of the Holders and shall not be subject to this Article Eight.
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) the Issuer, except under the conditions described in this Article
Eight, from making payments of principal of and interest on the Securities, or
from depositing with the Trustee any moneys for such payments or from effecting
a termination of the Issuer's and the Subsidiary Guarantors' obligations under
the Securities and this Indenture, in each case as provided in Article Nine, or
(ii) the application by the Trustee of any moneys deposited with it under
Article Nine for the purpose of making such payments of principal of and
interest on the Securities, to the holders entitled thereto unless at least two
Business Days prior to the date upon which such payment becomes due and
payable, the Trustee shall have received the written notice provided for in
Section 8.02(c) or in Section 8.06. The Issuer shall give prompt written notice
to the Trustee of any dissolution, winding-up, liquidation or reorganization of
the Issuer.
SECTION 8.15 Acceleration of Securities.
Without prejudice to Section 6.02, if payment of the Securities is
accelerated because of an Event of Default, the Issuer shall promptly notify
holders of the Senior Indebtedness of the acceleration.
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance and Covenant Defeasance.
Subject to the provisions of Article Eight and Article Twelve, the
Issuer may terminate its and the Subsidiary Guarantors' substantive obligations
in respect of the Securities by delivering all outstanding Securities to the
Trustee for cancellation and paying all sums payable
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by them on account of principal of and interest on all Securities or otherwise.
In addition to the foregoing, the Issuer may, provided that no Default or Event
of Default has occurred and is continuing or would arise therefrom (or, with
respect to a Default or Event of Default specified in Section 6.01(h) or (i),
any time on or prior to the 91st calendar day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 91st day)) and provided that no default under any Senior Indebtedness would
result therefrom, terminate its and the Subsidiary Guarantors' substantive
obligations in respect of the Securities (except for its obligations to pay the
principal of and interest on the Securities and the Subsidiary Guarantors'
guarantee thereof) by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or direct non-callable obligations of the
United States of America for the payment of which the full faith and credit of
the United States is pledged ("United States Government Obligations") sufficient
(without reinvestment) to pay all remaining Indebtedness on the Securities, (ii)
delivering to the Trustee either an Opinion of Counsel or a ruling directed to
the Trustee from the Internal Revenue Service to the effect that the Holders of
the Securities will not recognize income, gain or loss for federal income tax
purposes solely as a result of such deposit and termination of obligations,
(iii) delivering to the Trustee an Opinion of Counsel to the effect that the
Issuer's exercise of its option under this paragraph will not result in the
Issuer, the Trustee or the trust created by the Issuer's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officer's Certificate and an Opinion of Counsel
each stating compliance with all conditions precedent provided for herein. In
addition, subject to the provisions of Article Eight and Article Twelve with
respect to the creation of the defeasance trust provided for in the following
clause (i), the Issuer may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Section 6.01(h) or (i), any time on or
prior to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
91st day)) and provided that no default under any Senior Indebtedness or Senior
Guarantor Indebtedness would result therefrom, terminate all of its and the
Subsidiary Guarantors' substantive obligations in respect of the Securities
(including its obligations to pay the principal of and interest on the
Securities and the Subsidiary Guarantors' guarantee thereof) by (i) depositing
with the Trustee, under the terms of an irrevocable trust agreement, money or
United States Government Obligations sufficient (without reinvestment) to pay
all remaining Indebtedness on the Securities, (ii) delivering to the Trustee
either a ruling directed to the Trustee from the Internal Revenue Service to the
effect that the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes solely as a result of such deposit and
termination of obligations or an Opinion of Counsel based upon such a ruling
addressed to the Trustee or a change in the applicable Federal tax law since the
date of this Indenture to such effect, (iii) delivering to the Trustee an
Opinion of Counsel to the effect that
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the Issuer's exercise of its option under this paragraph will not result in any
of the Issuer, the Trustee or the trust created by the Issuer's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officer's Certificate and an Opinion of Counsel
each stating compliance with all conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Issuer's
obligations in Sections 2.03, 2.05, 2.06, 2.07, 4.01 (but not with respect to
termination of substantive obligations pursuant to the third sentence of the
foregoing paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until the
Securities are no longer outstanding. Thereafter the Issuer's obligations in
Sections 7.07, 9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an
Officer's Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Issuer's and the Subsidiary
Guarantors' obligations under the Securities and this Indenture except for
those surviving obligations specified above.
SECTION 9.02 Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities.
SECTION 9.03 Repayment to Issuer.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Issuer upon written request any excess money held by it at any time. The
Trustee shall pay to the Issuer upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
may at the expense of the Issuer cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining
shall be repaid to the Issuer. After payment to the Issuer, Securityholders
entitled to money must look to the Issuer for payment as general creditors
unless an applicable abandoned property law designates another person and all
liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
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SECTION 9.04 Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuer' and the Subsidiary Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Issuer has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 Without Consent of Holders.
The Issuer and the Subsidiary Guarantors, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or consent of
any Securityholder:
(a) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not materially and adversely affect the
rights of any Holder under this Indenture or the Securities;
(b) to effect the assumption by a successor Person of all obligations
of the Issuer under the Securities and this Indenture in connection with any
transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
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(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not materially and adversely
affect the rights of any Holder under this Indenture or the Securities;
(g) to evidence the succession of another Person to any Subsidiary
Guarantor and the assumption by any such successor of the covenants of such
Subsidiary Guarantor herein and in the Subsidiary Guarantee;
(h) to add to the covenants of the Issuer or the Subsidiary Guarantors
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Issuer or any Subsidiary Guarantor;
(i) to add guarantees with respect to the subsidiaries;
(j) to secure the Securities pursuant to the requirements of Section
4.18 or otherwise; or
(k) to reflect the release of a Subsidiary Guarantor from its
obligations with respect to its Subsidiary Guarantee in accordance with the
provisions of Section 11.03 and to add a Guarantor pursuant to the requirements
of Sections 4.19 and 11.07; provided, however, that the Issuer has delivered to
the Trustee an Opinion of Counsel stating that such amendment or supplement
complies with the provisions of this Section 10.01.
SECTION 10.02 With Consent of Holders.
Subject to Section 6.07, the Issuer and the Subsidiary Guarantors,
when authorized by a resolution of their respective Boards of Directors, and
the Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Securities. Subject to Section 6.07, the Holders
of a majority in aggregate principal amount of the then outstanding Securities,
on behalf of all Holders, may waive compliance by the Issuer or any Subsidiary
Guarantor with any provision of this Indenture or the Securities. However,
without the consent of each Securityholder affected, an amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may not:
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(a) change or extend the fixed maturity of the Securities, reduce the
rate or extend the time of payment of interest thereon, reduce the principal
amount thereof or premium, if any, thereon or change the currency in which the
Securities are payable;
(b) reduce the premium payable upon any redemption of Securities in
accordance with the optional redemption provisions of the Securities or change
the time before which no such redemption may be made;
(c) waive a default in the payment of principal or interest on the
Securities (except that holders of a majority in aggregate principal amount of
the Securities at the time outstanding may (a) rescind an acceleration of the
Securities that resulted from a non-payment default and (b) waive the payment
default that resulted from such acceleration) or alter the rights of
Securityholders to waive defaults;
(d) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this Section
10.02 (other than to add sections of this Indenture or the Securities which may
not be amended, supplemented or waived without the consent of each
Securityholder affected);
(e) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(f) modify the ranking or priority of the Securities or the Subsidiary
Guarantee of any Subsidiary Guarantor, or modify the definition of Senior
Indebtedness or Senior Guarantor Indebtedness, or amend or modify any of the
provisions of Article Eight or Article Twelve in any manner adverse to the
Holders;
(g) release any Subsidiary Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture otherwise than in accordance with
this Indenture; or
(h) modify the provisions relating to any Offer required pursuant to
Section 4.05 or Change of Control Offer required pursuant to Section 4.14 in a
manner materially adverse to the Holders.
An amendment under this Section 10.02 may not make any change under
Article Eight, Article Nine, Article Eleven or Article Twelve hereof that
adversely affects in any material respect the rights of any holder of Senior
Indebtedness then outstanding unless the holders of
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such Senior Indebtedness (or any agent or representative thereof authorized to
give a consent) shall have consented to such change in writing.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuer shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuer to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 10.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04 Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or waiver
whether or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(a) through (h) of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
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SECTION 10.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Issuer or
the Trustee so determines, the Issuer in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver constitutes the legal, valid and binding obligation of the Issuer and
the Subsidiary Guarantors, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not (except to the extent
required in the case of a supplemental indenture entered into pursuant to
Section 10.01(d)) be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to
it.
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01 Unconditional Guarantee.
Subject to Article Twelve, each Subsidiary Guarantor hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Securities and all other
obligations of the Issuer to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each Subsidiary Guarantor hereby agrees that its
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obligations hereunder shall be unconditional, subject to Article Twelve,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof
or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that the Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture, and this Subsidiary Guarantee. If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer, any
Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Issuer or any Subsidiary Guarantor, any
amount paid by the Issuer or any Subsidiary Guarantor to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Subsidiary Guarantor further
agrees that, as between each Subsidiary Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purpose
of this Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Subsidiary Guarantor for the
purpose of this Subsidiary Guarantee.
SECTION 11.02 Severability.
In case any provision of this Subsidiary Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.03 Release of a Guarantor.
(a) In the event that each holder of Other Indebtedness which resulted
in the creation of a Subsidiary Guarantee unconditionally releases a Subsidiary
Guarantor of all of its obligations under its guarantee of such Other
Indebtedness pursuant to a written agreement in form and substance satisfactory
to the Trustee (other than a release resulting from payment under such
guarantee) such Subsidiary Guarantor shall be automatically and unconditionally
released from all obligations under its Subsidiary Guarantee.
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(b) Additionally, if the Securities are defeased in accordance with
the terms of this Indenture, or if all or substantially all of the assets of
any Subsidiary Guarantor or all of the Equity Interests of any Subsidiary
Guarantor is sold (including by issuance or otherwise) by the Issuer or any of
its Subsidiaries in a transaction constituting an Asset Sale and if (x) the Net
Cash Proceeds from such Asset Sale are used in accordance with Section 4.05 or
(y) the Issuer delivers to the Trustee an Officer's Certificate covenanting
that the Net Cash Proceeds from such Asset Sale shall be used in accordance
with Section 4.05 and within the time limits specified by such Section 4.05,
then such Subsidiary Guarantor (in the event of a sale or other disposition of
all of the Equity Interests of such Subsidiary Guarantor) or the corporation
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor), shall be deemed
released from all obligations under this Article Eleven without any further
action required on the part of the Trustee or any Holder.
(c) The Trustee shall, at the sole cost and expense of the Issuer,
upon receipt of a request by the Issuer accompanied by an Officer's Certificate
certifying as to the compliance with this Section and, with respect to clause
(b) of this Section 11.03, upon receipt at the reasonable request of the
Trustee of an Opinion of Counsel that the provisions of this Section 11.03 have
been complied with, deliver an appropriate instrument evidencing such release.
Any Subsidiary Guarantor not so released remains liable for the full amount of
principal of and interest on the Securities and the other obligations of the
Issuer hereunder as provided in this Article Eleven.
SECTION 11.04 Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder
and the Trustee, hereby confirms that it is the intention of all such parties
that the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary
Guarantee not constitute a fraudulent transfer or conveyance for purposes of
title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law or that the obligations of such Subsidiary
Guarantor under Section 11.01 would otherwise be held or determined to be void,
invalid or unenforceable on account of the amount of its liability under said
Section 11.01. To effectuate the foregoing intention, the Holders and such
Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to Section 11.05, result in the
obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting such
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fraudulent transfer or conveyance and not being held or determined to be void,
invalid or unenforceable.
SECTION 11.05 Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from all other Subsidiary Guarantors in a
pro rata amount, based on the net assets of each Subsidiary Guarantor
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.04, for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Issuer's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to the
Subsidiary Guarantee.
SECTION 11.06 Execution of Subsidiary Guarantee.
To further evidence their Subsidiary Guarantee to the Holders, the
Subsidiary Guarantors hereby agree to execute the Subsidiary Guarantee in
substantially the form set forth in Exhibit B to be endorsed on each Security
authenticated and delivered by the Trustee after such Subsidiary Guarantee is
executed. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on any particular Security a notation of such Subsidiary
Guarantee. Each such Subsidiary Guarantee shall be signed on behalf of each
Subsidiary Guarantor by its Chairman of the Board of Directors, its President
or one of its Vice Presidents prior to the authentication of the Security on
which it is endorsed, and the delivery of such Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of such
Subsidiary Guarantee on behalf of such Subsidiary Guarantor. Such signature
upon the Subsidiary Guarantee may be the manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the Subsidiary
Guarantee, and in case such officer who shall have signed the Subsidiary
Guarantee shall cease to be such officer before the Security on which such
Subsidiary Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Issuer, such Security nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
Subsidiary Guarantee had not ceased to be such officer of the Subsidiary
Guarantor.
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SECTION 11.07 Additional Subsidiary Guarantors.
Any Restricted Subsidiary of the Issuer which is required pursuant to
Section 4.19 to become a Subsidiary Guarantor shall execute and deliver to the
Trustee (a) a supplemental indenture in form and substance reasonably
satisfactory to the Trustee which subjects such Restricted Subsidiary to the
provisions of this Indenture as a Subsidiary Guarantor, and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Restricted Subsidiary and constitutes the legal, valid,
binding and enforceable obligation of such Restricted Subsidiary (subject to
such customary exceptions concerning fraudulent conveyance laws, creditors'
rights and equitable principles).
SECTION 11.08 Subordination of Subrogation and Other Rights.
Each Subsidiary Guarantor hereby agrees that any claim against the
Issuer that arises from the payment, performance or enforcement of such
Subsidiary Guarantor's obligations under its Subsidiary Guarantee or this
Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of
such Subsidiary Guarantor shall be made before, the payment in full in cash of
all outstanding Securities in accordance with the provisions provided therefor
in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01 Subsidiary Guarantee Subordinated to Senior Guarantor
Indebtedness.
Each Subsidiary Guarantor covenants and agrees, and the Trustee and
each Holder of the Securities by his acceptance thereof likewise covenant and
agree, that the Securities and the Subsidiary Guarantees shall be issued
subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that all payments of the principal of and interest
on the Securities pursuant to any Subsidiary Guarantee made by or on behalf of
any Subsidiary Guarantor (including without limitation in connection with
Article Three, Section 4.01 and Article Five) shall, to the extent and in the
manner set forth in this Article, be subordinated and junior in right of
payment to the prior payment in full in cash of all amounts payable under
existing and future Senior Guarantor Indebtedness of such Subsidiary Guarantor.
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SECTION 12.02 No Payment on Subsidiary Guarantees in Certain Circumstances.
(a) Upon the occurrence and during the continuance of any default in
the payment of principal of, premium, if any, or interest on any Senior
Guarantor Indebtedness or Senior Indebtedness, beyond any applicable grace
period with respect thereto (a "Payment Default"), no payment or distribution
of any assets of the Issuer of any kind or character may be made on account of
the Securities unless and until such Payment Default has been cured, waived or
has ceased to exist or such Senior Indebtedness shall have been discharged or
paid in full in cash or the benefits of this sentence shall have been waived in
writing by or on behalf of the holders of such Senior Guarantor Indebtedness.
(b) Upon the occurrence and during the continuance of any default
(other than a Payment Default) with respect to any Designated Senior Guarantor
Indebtedness pursuant to which the maturity thereof may be accelerated (a
"Non-Payment Default") and after the receipt by the Trustee and the Issuer from
a Senior Representative of written notice of such NonPayment Default, no
payment (other than payments previously made pursuant to the provisions in
Article Nine) or distribution of any assets of the Subsidiary Guarantors of any
kind or character (other than common stock or securities convertible into
common stock and other than Indebtedness which is subordinated to the
Designated Senior Guarantor Indebtedness at least to the same extent the
Securities are subordinated to such Designated Senior Guarantor Indebtedness)
may be made by the Subsidiary Guarantors on account of the principal of,
premium, if any, or interest on, the Securities or on account of the purchase,
redemption, defeasance or other acquisition of, or in respect of, the
Securities for the period specified below (the "Guarantor Payment Blockage
Period").
The Guarantor Payment Blockage Period shall commence upon the receipt
of notice (which may be the same notice referred to in Section 8.02(b)) of the
Non-Payment Default by the Trustee from a Senior Representative and shall end
on the earliest of (i) the 179th day after such commencement, (ii) the date on
which such Non-Payment Default (and all other NonPayment Defaults as to which
notice is given after such Guarantor Payment Blockage Period is initiated) is
cured, waived or ceases to exist or on which such Designated Senior Guarantor
Indebtedness is discharged or paid in full in cash or (iii) the date on which
such Guarantor Payment Blockage Period (and all Non-Payment Defaults as to
which notice is given after such Guarantor Payment Blockage Period is
initiated) shall have been terminated by written notice to the Issuer or the
Trustee from the Senior Representative initiating such Guarantor Payment
Blockage Period, after which, in the case of clauses (i), (ii) and (iii), the
Subsidiary Guarantors will promptly resume making any and all required payments
in respect of the Securities, including any missed payments. In no event will a
Guarantor Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Issuer or the Trustee of the notice
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initiating such Guarantor Payment Blockage Period (such 179-day period referred
to as the "Initial Period"). Any number of notices of Non-Payment Defaults may
be given during the Initial Period; provided that during any period of 365
consecutive days only one Guarantor Payment Blockage Period, during which
payment of principal of, or interest on, the Securities may not be made, may
commence and the duration of such period may not exceed 179 days. No
Non-Payment Default with respect to Designated Senior Guarantor Indebtedness
that existed or was continuing on the date of the commencement of any Guarantor
Payment Blockage Period will be, or can be, made the basis for the commencement
of a second Guarantor Payment Blockage Period, whether or not within a period
of 365 consecutive days, unless such default has been cured or waived for a
period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Sections 12.02(a) or 12.02(b), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Designated Senior Guarantor Indebtedness or their respective agents or
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Designated Senior Guarantor Indebtedness may have been
issued, as their respective interests may appear, but only to the extent that,
within a reasonable period following written notice from the Trustee to the
holders of such Designated Senior Guarantor Indebtedness (and their agent,
representative or representatives or a trustee, if any) that such prohibited
payment has been made, the holders of such Designated Senior Guarantor
Indebtedness (or their agent, representative or representatives or a trustee)
notify the Trustee in writing of the amounts then due and owing on such
Designated Senior Guarantor Indebtedness, if any, and only the amounts
specified in such notice to the Trustee shall be paid to the holders of such
Designated Senior Guarantor Indebtedness.
SECTION 12.03 Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of any
Subsidiary Guarantor of any kind or character, whether in cash, property or
securities (including any payment made to Securityholders under the terms of
Indebtedness subordinated to the Securities), upon any dissolution or
winding-up or total or partial liquidation or reorganization of such Subsidiary
Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Guarantor Indebtedness of such
Subsidiary Guarantor shall first be paid in full in cash before the Holders of
the Securities or the Trustee on behalf of such Holders shall be entitled to
receive any payment by or on behalf of such Subsidiary Guarantor of the
principal of or interest on or other amounts with respect to the Securities
pursuant to such Subsidiary Guarantor's Subsidiary Guarantee, or any payment to
acquire any of the Securities for cash, property or securities, or any
distribution with respect to
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the Securities of any cash, property or securities. Before any payment may be
made by, or on behalf of, any Subsidiary Guarantor of the principal of or
interest on or other amounts with respect to the Securities upon any such
dissolution or winding-up or liquidation or reorganization, any payment or
distribution of assets or securities of such Subsidiary Guarantor of any kind
or character, whether in cash, property or securities (including any payment
made to Securityholders under the terms of Indebtedness subordinated to the
Securities), to which the Holders of the Securities or the Trustee on their
behalf would be entitled, but for the subordination provisions of this
Indenture, shall be made by such Subsidiary Guarantor or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, directly to the holders of the Senior Guarantor
Indebtedness of such Subsidiary Guarantor (pro rata to such holders on the
basis of the respective amounts of such Senior Guarantor Indebtedness held by
such holders) or their agents or representatives or to the trustee or trustees
under any indenture pursuant to which any of such Senior Guarantor Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Guarantor Indebtedness in full in cash after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Guarantor Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of any Subsidiary Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder of
Securities at a time when such payment or distribution is prohibited by Section
12.03(a) and before all Obligations in respect of the Senior Guarantor
Indebtedness of such Subsidiary Guarantor are paid in full in cash, such
payment or distribution shall be received and held in trust for the benefit of,
and shall be paid over or delivered to, the holders of such Senior Guarantor
Indebtedness (pro rata to such holders on the basis of the respective amounts
of such Senior Guarantor Indebtedness held by such holders) or their respective
agents, representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Guarantor Indebtedness may have been
issued, as their respective interests may appear, for application to the
payment of such Senior Guarantor Indebtedness remaining unpaid until all such
Senior Guarantor Indebtedness has been paid in full in cash after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Guarantor Indebtedness.
The consolidation of any Subsidiary Guarantor with, or the merger of
any Subsidiary Guarantor with or into, another corporation or the liquidation
or dissolution of any Subsidiary Guarantor following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided in Article Five shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of
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this Section if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Five.
SECTION 12.04 Subrogation.
Upon the payment in full in cash of all Senior Guarantor Indebtedness
of a Subsidiary Guarantor, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Guarantor Indebtedness to receive
payments or distributions of cash, property or securities of such Subsidiary
Guarantor made on such Senior Guarantor Indebtedness until the principal of and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Guarantor Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee on their behalf would be entitled except for
the provisions of this Article, and no payment over pursuant to the provisions
of this Article to the holders of such Senior Guarantor Indebtedness by Holders
of the Securities or the Trustee on their behalf shall, as between such
Subsidiary Guarantor, its creditors other than holders of such Senior Guarantor
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
such Subsidiary Guarantor to or on account of such Senior Guarantor
Indebtedness. It is understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of Senior Guarantor
Indebtedness of each Subsidiary Guarantor, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment
of all amounts payable under Senior Guarantor Indebtedness, then and in such
case, the Holders of the Securities shall be entitled to receive from the
holders of such Senior Guarantor Indebtedness any payments or distributions
received by such holders of Senior Guarantor Indebtedness in excess of the
amount required to make payment in full in cash of such Senior Guarantor
Indebtedness.
SECTION 12.05 Obligations of Subsidiary Guarantors Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities or the Subsidiary Guarantee is intended to or shall impair, as
among the Subsidiary Guarantors and the Holders of the Securities, the
obligation of each Subsidiary Guarantor, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
the terms of the Subsidiary Guarantee, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of any
Subsidiary Guarantor other than the holders of
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Senior Guarantor Indebtedness, nor shall anything herein or therein prevent the
Holder of any Security or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Guarantor Indebtedness in respect of cash, property or securities of any
Subsidiary Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.02 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Guarantor
Indebtedness of any Subsidiary Guarantor then due and payable shall first be
paid in full in cash before the Holders of the Securities or the Trustee are
entitled to receive any direct or indirect payment from such Subsidiary
Guarantor of principal of or interest or other amounts on the Securities
pursuant to such Subsidiary Guarantor's Subsidiary Guarantee.
SECTION 12.06 Notice to Trustee.
Each Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. The Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Guarantor Indebtedness or of any other facts which would prohibit
the making of any payment to or by the Trustee unless and until the Trustee
shall have received notice in writing at its Corporate Trust Office to that
effect signed by an Officer of such Subsidiary Guarantor, or by a holder of
Senior Guarantor Indebtedness or trustee or agent therefor; and prior to the
receipt of any such written notice, the Trustee shall, subject to Article
Seven, be entitled to assume that no such facts exist; provided that if the
Trustee shall not have received the notice provided for in this Section at
least one Business Day prior to the date upon which by the terms of this
Indenture any moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security), then,
regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive any moneys from any Subsidiary Guarantor and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Nothing contained in this Section 12.06 shall limit the right
of the holders of Senior Guarantor Indebtedness to recover payments as
contemplated by Section 12.03. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself
to be a holder of any Senior Guarantor Indebtedness (or a trustee on behalf of,
or other representative of, such
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holder) to establish that such notice has been given by a holder of such Senior
Guarantor Indebtedness or a trustee or representative on behalf of any such
holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Guarantor Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Guarantor Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.07 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Subsidiary Guarantor referred to in this Article, the Trustee and the Holders
of the Securities shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which bankruptcy, dissolution,
winding-up, liquidation or reorganization proceedings are pending, or upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee
or to the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Guarantor
Indebtedness of such Subsidiary Guarantor and other indebtedness of such
Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 12.08 Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Guarantor Indebtedness
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Guarantor Indebtedness, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.
With respect to the holders of Senior Guarantor Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Guarantor
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall
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not be deemed to owe any fiduciary duty to the holders of Senior Guarantor
Indebtedness (except as provided in Sections 12.02(c) and 12.03(b)).
SECTION 12.09 Subordination Rights Not Impaired by Acts or Omissions of the
Subsidiary Guarantors or Holders of Guarantor Senior
Indebtedness.
No right of any present or future holders of any Senior Guarantor
Indebtedness to enforce the subordination terms as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by any Subsidiary Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with. The provisions of this
Article are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Guarantor Indebtedness.
SECTION 12.10 Securityholders Authorize Trustee to Effectuate Subordination of
Subsidiary Guarantees.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of any Subsidiary Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) the filing of a claim for the unpaid
balance of its or his Securities in the form required in those proceedings.
SECTION 12.11 This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (a) or (b) of Section 6.01.
SECTION 12.12 Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
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SECTION 12.13 No Waiver of Subsidiary Guarantee Subordination Provisions.
Without in any way limiting the generality of Section 12.09, the
holders of Senior Guarantor Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Guarantor Indebtedness, do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Senior Guarantor Indebtedness or any instrument evidencing the
same or any agreement under which Senior Guarantor Indebtedness is outstanding
or secured; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Guarantor Indebtedness; (c)
release any Person liable in any manner for the collection of Senior Guarantor
Indebtedness or add subsidiaries of the Issuer as additional guarantors or
borrowers thereunder; (d) exercise or refrain from exercising any rights
against any Subsidiary Guarantor and any other Person; or (e) modify, amend,
restate, restructure, supplement or refinance Senior Guarantor Indebtedness or
any instrument evidencing the same or any agreement under which Senior
Guarantor Indebtedness is outstanding or secured (provided that no such
modification, amendment, restatement, restructuring, supplement or refinancing
shall conflict with the covenants in Sections 4.04, 4.05, 4.06, 4.15, 4.16 or
4.19).
SECTION 12.14 Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) a Subsidiary Guarantor, except under the conditions described in
this Article Twelve, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments,
or (ii) the application by the Trustee of any moneys deposited with it under
Article Nine for the purpose of making such payments of principal of and
interest on the Securities, to the holders entitled thereto unless at least two
Business Days prior to the date upon which such payment becomes due and
payable, the Trustee shall have received the written notice provided for in
Section 12.02(c) or in Section 12.06. A Subsidiary Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Subsidiary Guarantor.
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable,
be governed by such provisions. If any provision of this Indenture modifies any
TIA provision that may be so modified, such TIA provision shall be deemed to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Indenture.
The provisions of TIA ss.ss.310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.02 Notices.
Any notice or communication required or permitted to be given under
this Indenture shall be sufficiently given if in writing and delivered in
person, by facsimile and confirmed by overnight courier, or mailed by
first-class mail addressed as follows:
if to the Issuer:
Classic Cable, Inc.
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Seach
Title: President & Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
For payment, registration, transfer and exchange of
the Securities:
Chase Bank of Texas, National Association
One Main Place
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 or (000) 000-0000
For all other communications relating to the
Securities:
Chase Bank of Texas, National Association
000 Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
Title: Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Notwithstanding the foregoing, notices to the Trustee shall be effective only
upon receipt.
Any notice or communication mailed, first class, postage prepaid, to a
Securityholder, including any notice delivered in connection with TIA
ss.310(b), TIA ss.313(c), TIA ss.314(a) and TIA ss.315(b), shall be mailed to
him at his address as set forth on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed. To
the
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extent required by the TIA, any notice or communication shall also be mailed to
any Person described in TIA ss.313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss.312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuer, the Trustee, the Registrar and any other person shall
have the protection of TIA ss.312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall
furnish to the Trustee at the request of the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(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;
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(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officer's
Certificate or certificates of public officials.
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.08 No Recourse Against Others.
A director, officer, employee, incorporator, limited or general
partner or stockholder, as such, of the Issuer or any Subsidiary Guarantor
shall not have any liability for any obligations of the Issuer or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantee or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 13.09 Successors.
All agreements of the Issuer in this Indenture and the Securities
shall bind its successors. All agreements of each Subsidiary Guarantor in this
Indenture and Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.10 Counterpart Originals.
The parties may sign any number of counterparts of this Indenture.
Each signed counterpart shall be an original, but all of them together
represent the same agreement.
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SECTION 13.11 Severability.
In case any provision in this Indenture, in the Securities or in the
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuer or a Subsidiary of Issuer. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13 Legal Holidays.
If a payment date occurs on a day that is not a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day, and no interest shall accrue for the intervening
period.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
CLASSIC CABLE, INC., as Issuer
By: /s/ XXXXXX X. SEACH
-----------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief Financial
Officer
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
106
[FORM OF SECURITY]
(Face of Security)
EXHIBIT A
CUSIP No. 00000XXX0
CLASSIC CABLE, INC.
--------------------------------
9 7/8% SENIOR SUBORDINATED NOTE DUE 2008
No. 1 $125,000,000
Classic Cable, Inc. and the subsidiary guarantors listed on the
Appendix to the Indenture (the "Subsidiary Guarantors") hereby jointly and
severally promise to pay to CEDE & CO. or registered assigns the principal sum
of ONE HUNDRED TWENTY FIVE MILLION DOLLARS on the Maturity Date of August 1,
2008.
Interest Payment Dates: February 1 and August 1, commencing February 1, 1999
Record Dates: January 15 or July 15
Reference is hereby made to the further provisions on this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, Classic Cable, Inc. has caused this instrument to
be signed manually or by facsimile by a duly authorized officers.
Dated: July 29, 1998
CLASSIC CABLE, INC., as Issuer
By:
-------------------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief Financial Officer
Certificate of Authentication:
This is one of the 9 7/8% Senior Subordinated Notes due 2008
referred to in the within-mentioned Indenture.
Chase Bank of Texas, National Association, as Trustee
By Date of Authentication: July 29, 1998
--------------------------
Authorized Signatory
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A-2
(Reverse Of Security)
CLASSIC CABLE, INC.
-----------------------------
9 7/8% Senior Subordinated Note due 2008
1. Interest.
Classic Cable, Inc., a Delaware corporation (the "Issuer"),
and the Subsidiary Guarantors, jointly and severally promise to pay interest at
the rate of 9 7/8% per annum on the principal amount of this Security
semiannually commencing on February 1, 1999, until the principal hereof is paid
or made available for payment. Interest on the Securities will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 29, 1998, through but excluding
the date on which interest is paid. If an Interest Payment Date falls on a day
that is not a Business Day, the interest payment to be made on such Interest
Payment Date will be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date, and no additional
interest will accrue as a result of such delayed payment. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
In the event that (i) an exchange offer registration statement under
the Securities Act ("Exchange Offer Registration Statement") is not filed with
the SEC on or prior to 60 days following the July 29, 1998, (ii) the Exchange
Offer Registration Statement is not declared effective on or prior to 120 days
following the July 29, 1998 or (iii) the Exchange Offer is not consummated on
or prior to 150 days following the July 29, 1998, the interest rate borne by
the Securities shall be increased by one-quarter of one percent per annum (a)
following such 60-day period in the case of (i) above, (b) following such
120-day period in the case of (ii) above, (c) following such 150-day period in
the case of (iii) above and (d) following each such subsequent 90-day period in
the case of clauses (i), (ii) and (iii) above; provided that the aggregate
increase in such interest rate will in no event exceed one percent per annum.
Upon (x) the filing of the Exchange Offer Registration Statement in the case of
clause (i) above, (y) the effectiveness of the Exchange Offer Registration
Statement in the case of clause (ii) above or (z) the day before the date of
the consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement as the case may be, in the case of clause (iii) above,
the interest rate borne by the Securities from the date of such filing,
effectiveness or day before the date of the consummation, as the case may be,
will be reduced by the corresponding amount of any such increases pursuant to
clauses (a), (b), (c) and (d) above.
2. Method of Payment.
The interest payable on the Securities, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the regular record date,
108
A-3
which shall be the January 15 or July 15 (whether or not a Business Day) next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for, and any interest payable on such defaulted interest (to
the extent lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this Security
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Issuer, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal of and interest on this Security will be made at the
agency of the Issuer maintained for that purpose in New York, New York and at
any other office or agency maintained by the Issuer for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
at the option of the Issuer payment of interest may be made by check mailed to
the address of the person entitled thereto as such address shall appear in the
Security register.
3. Paying Agent and Registrar.
Initially, Chase Bank of Texas, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders of
Securities. The Issuer or any of its Subsidiaries may act as Registrar,
co-Registrar or, except in certain circumstances specified in the Indenture,
Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities
of the Issuer, designated as its 9 7/8% Senior Subordinated Notes due 2008 (the
"Securities"), limited in aggregate principal amount to $125,000,000 (except
for Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture dated as of July 29, 1998 (the "Indenture"), among
the Issuer, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those required to be made
part of the Indenture by the Trust Indenture Act of 1939 (the "Act") (15 U.S.
Code xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture and the
date the Indenture is qualified under the Act. The Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and the
Act for a statement of them. Each Securityholder, by accepting a Security,
agrees to be bound by all of the terms and provisions of the Indenture, as the
same may be amended from time to time.
The Securities are subordinated in right of payment to all
Senior Indebtedness of the Issuer to the extent and in the manner provided in
the Indenture. Each Holder of a Security, by accepting a Security, agrees to
such subordination, authorizes the Trustee to give effect to such subordination
and appoints the Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent
not defined herein shall have the meanings assigned to them in the Indenture.
109
A-4
5. Optional Redemption.
(a) The Securities are not redeemable prior to August 1,
2003, except as provided in clause (b) or (c) below of this paragraph 5. On and
after such date, the Securities may be redeemed at any time, in whole or in
part, at the option of the Issuer, at redemption prices (expressed as
percentages of the principal amount) set forth below, if redeemed during the
12-month period beginning August 1 of the year indicated below, in each case
together with interest accrued and unpaid to but excluding the date fixed for
redemption:
Year Percentage
---- ----------
2003................................... 104.938%
2004................................... 103.292%
2005................................... 101.646%
2006 and thereafter.................... 100.000%
(b) At any time prior to August 1, 2001, the Issuer may
redeem up to 35% of the principal amount of original principal amount of the
Securities with the Net Cash Proceeds of one or more Equity Offerings of the
Issuer or CCI or of a Strategic Equity Investment, at a redemption price in
cash equal to (expressed as a percentage of the principal amount) 109.875% of
the principal amount thereof, plus accrued and unpaid interest to the date
fixed for redemption; provided, however, that at least 65% in aggregate
principal amount of the Securities originally issued remains outstanding
immediately after any such redemption (excluding any Securities owned by the
Issuer or any of its Affiliates). Any such redemption pursuant to this
paragraph will be required to occur within 45 days following the closing of any
such Equity Offering or Strategic Equity Investment.
(c) Upon the occurrence of a Change of Control, the Issuer
may redeem all, but not less than all, the Securities in cash, at a redemption
price equal to the principal amount thereof plus accrued and unpaid interest to
the date of redemption plus the Applicable Premium. Notice of redemption of the
Securities pursuant to this paragraph shall be mailed to holders of the
Securities not more than 30 days following the occurrence of a Change of
Control. The Issuer may not redeem Securities pursuant to this paragraph if it
has made a Change of Control Offer with respect to such Change of Control.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at
least 30 and not less than 60 days before the redemption date to each Holder of
Securities to be redeemed at the address appearing in the register of
Securities maintained by the Registrar. Securities in denominations larger than
$1,000 may be redeemed in part. On and after the redemption date, interest
ceases to accrue on those Securities or portion of them called for redemption.
110
A-5
7. Purchase upon Occurrence of a
Change of Control.
Within 30 days of the occurrence of a Change of Control, the
Issuer will offer to purchase the Securities, in whole and not in part, at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the
owner of it for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee or Paying Agent will repay the funds to
the Issuer at its request. After such repayment Holders of Securities entitled
to such funds must look to the Issuer for payment unless an abandoned property
law designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or United States Government Obligations sufficient for such payment or
redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the outstanding Securities, and any
past default or compliance with any provision may be waived with the consent of
the Holders of a majority in principal amount of the outstanding Securities.
Without notice to or the consent of any Holder, the Issuer, any Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to make any
change that does not materially and adversely affect the rights of any Holder
of Securities.
111
A-6
13. Restrictive Covenants.
The Securities are general unsecured Senior Subordinated
Indebtedness of the Issuer limited to the aggregate principal amount of
$125,000,000. The Indenture restricts, among other things, the ability of the
Issuer or any of its Restricted Subsidiaries to permit any Liens to be imposed
on their assets, to make certain payments and investments, limits the
Indebtedness which the Issuer and its Restricted Subsidiaries may incur and
limits the terms on which the Issuer and its Restricted Subsidiaries may engage
in Asset Sales. The Issuer is also obligated under certain circumstances to
make an offer to purchase Securities with the net cash proceeds of certain
Asset Sales. The Issuer must report annually to the Trustee on compliance with
certain covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Issuer to
consolidate with, merge with or into or transfer its assets to another person
is conditioned upon certain requirements, including certain financial
requirements applicable to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, to the date the Securities become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Issuer.
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Issuer or its Affiliates, and may otherwise
deal with the Issuer or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee, incorporator, limited or
general partner or stockholder, as such, of the Issuer or any Subsidiary
Guarantor shall not have any liability for any obligations of the Issuer or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantee or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
112
A-7
19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE, THIS SECURITY AND ANY SUBSIDIARY GUARANTEE WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
22. Subsidiary Guarantees.
This Security may after the date hereof be entitled to
certain Subsidiary Guarantees made for the benefit of the Holders. Reference is
hereby made to the Indenture for the terms of any Subsidiary Guarantee
(including any terms of subordination of such Subsidiary Guarantee that may
apply).
The Issuer will furnish to any Holder of record of Securities
upon written request and without charge a copy of the Indenture.
113
A-8
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ,
--------------------------------------------------------
agent to transfer this Security on the books of the Issuer. The agent may
substitute another to act for him.
Dated: Signed:
-------------- -------------------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:*
-----------------------------------------------------------
-----------------------------
* Signature must be guaranteed by a member of the Medallion Signature
Program.
114
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Issuer,
check the box:
[ ]
If you want to elect to have only part of this Security purchased by the Issuer,
state the amount: $
---------
Dated: Your signature:
--------- -------------------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:*
----------------------------------------------------------
---------------------
* Signature must be guaranteed by a member of the Medallion Signature
Program.
115
EXHIBIT B
[FORM OF SUBSIDIARY GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture
referred to in the Security upon which this notation is endorsed) hereby,
jointly and severally, unconditionally guarantee on a senior subordinated basis
(such guarantee by each Subsidiary Guarantor being referred to herein as the
"Subsidiary Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest, if any, on the Securities, and the due
and punctual performance of all other obligations of the Issuer to the Holders
or the Trustee, all in accordance with the terms set forth in Article Eleven of
the Indenture.
The obligations of each Subsidiary Guarantor to the Holders
of Securities and to the Trustee pursuant to the Subsidiary Guarantee and the
Indenture are expressly set forth, and are expressly subordinated and subject
in right of payment to the prior payment in full of all Senior Guarantor
Indebtedness of such Subsidiary Guarantor, to the extent and in the manner
provided, in Article Twelve of the Indenture, and reference is hereby made to
such Indenture for the precise terms of the Subsidiary Guarantee therein made.
This Subsidiary Guarantee shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
This Subsidiary Guarantee is subject to release upon the
terms set forth in the Indenture.
[Subsidiary Guarantor]
By:
--------------------------------
Name:
Title:
116
EXHIBIT C
FORM OF LEGENDS FOR SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Any Global Security which represents the Initial Securities (and all
Securities issued in substitution thereof) shall bear a legend in substantially
the following form:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")), (2)
AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
117
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144
UNDER THE SECURITIES ACT AND ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR AS LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE ISSUER, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
118
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security for
Physical Securities have been made:
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase Security officer of
Principal Amount in Principal following such Trustee or
Date of of this Global Amount of this decrease Securities
Exchange Security Global Security (or increase) Custodian
-------- -------- --------------- ------------- ---------
119
APPENDIX
Subsidiary Guarantors
Classic Cable Holding, Inc.
Ponca Holdings, Inc.
Classic Telephone, Inc.
Universal Cable Holdings, Inc.
Universal Cable Communications Inc.
Universal Cable of Beaver, Oklahoma, Inc.
Universal Cable Midwest, Inc.
WT Acquisition Corporation
W.K. Communications, Inc.
Television Enterprises, Inc.
Black Creek Communications, L.P.
Black Creek Management, L.L.C.
120
[FORM OF SECURITY]
(Face of Security)
EXHIBIT A
CUSIP No. 00000XXX0
CLASSIC CABLE, INC.
----------------------------------
9 7/8% SENIOR SUBORDINATED NOTE DUE 2008
No. 1 $125,000,000
Classic Cable, Inc. and the subsidiary guarantors listed on the
Appendix to the Indenture (the "Subsidiary Guarantors") hereby jointly and
severally promise to pay to CEDE & CO. or registered assigns the principal sum
of ONE HUNDRED TWENTY FIVE MILLION DOLLARS on the Maturity Date of August 1,
2008.
Interest Payment Dates: February 1 and August 1, commencing February 1, 1999
Record Dates: January 15 or July 15
Reference is hereby made to the further provisions on this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, Classic Cable, Inc. has caused this instrument to
be signed manually or by facsimile by a duly authorized officers.
Dated: July 29, 1998
CLASSIC CABLE, INC., as Issuer
By: /s/
-----------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief
Financial Officer
Certificate of Authentication:
This is one of the 9 7/8% Senior Subordinated Notes due 2008
referred to in the within-mentioned Indenture.
Chase Bank of Texas, National Association, as Trustee
121
By: Date of Authentication: July 29, 1998
---------------------
Authorized Signatory
2
122
(Reverse Of Security)
CLASSIC CABLE, INC.
---------------------------------------
9 7/8% Senior Subordinated Note due 2008
1. Interest.
Classic Cable, Inc., a Delaware corporation (the "Issuer"),
and the Subsidiary Guarantors, jointly and severally promise to pay interest at
the rate of 9 7/8% per annum on the principal amount of this Security
semiannually commencing on February 1, 1999, until the principal hereof is paid
or made available for payment. Interest on the Securities will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 29, 1998, through but excluding
the date on which interest is paid. If an Interest Payment Date falls on a day
that is not a Business Day, the interest payment to be made on such Interest
Payment Date will be made on the next succeeding Business Day with the same
force and effect as if made on such Interest Payment Date, and no additional
interest will accrue as a result of such delayed payment. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
In the event that (i) an exchange offer registration statement under
the Securities Act ("Exchange Offer Registration Statement") is not filed with
the SEC on or prior to 60 days following the July 29, 1998, (ii) the Exchange
Offer Registration Statement is not declared effective on or prior to 120 days
following the July 29, 1998 or (iii) the Exchange Offer is not consummated on or
prior to 150 days following the July 29, 1998, the interest rate borne by the
Securities shall be increased by one-quarter of one percent per annum (a)
following such 60-day period in the case of (i) above, (b) following such
120-day period in the case of (ii) above, (c) following such 150-day period in
the case of (iii) above and (d) following each such subsequent 90-day period in
the case of clauses (i), (ii) and (iii) above; provided that the aggregate
increase in such interest rate will in no event exceed one percent per annum.
Upon (x) the filing of the Exchange Offer Registration Statement in the case of
clause (i) above, (y) the effectiveness of the Exchange Offer Registration
Statement in the case of clause (ii) above or (z) the day before the date of the
consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement as the case may be, in the case of clause (iii) above,
the interest rate borne by the Securities from the date of such filing,
effectiveness or day before the date of the consummation, as the case may be,
will be reduced by the corresponding amount of any such increases pursuant to
clauses (a), (b), (c) and (d) above.
2. Method of Payment.
The interest payable on the Securities, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose
3
123
name this Security is registered at the close of business on the regular record
date, which shall be the January 15 or July 15 (whether or not a Business Day)
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for, and any interest payable on such defaulted interest
(to the extent lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this Security
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Issuer, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal of and interest on this Security will be made at the
agency of the Issuer maintained for that purpose in New York, New York and at
any other office or agency maintained by the Issuer for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Issuer payment of interest may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security register.
3. Paying Agent and Registrar.
Initially, Chase Bank of Texas, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders of
Securities. The Issuer or any of its Subsidiaries may act as Registrar,
co-Registrar or, except in certain circumstances specified in the Indenture,
Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities
of the Issuer, designated as its 9 7/8% Senior Subordinated Notes due 2008 (the
"Securities"), limited in aggregate principal amount to $125,000,000 (except for
Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture dated as of July 29, 1998 (the "Indenture"), among
the Issuer, the Subsidiary Guarantors and the Trustee. The terms of the
Securities include those stated in the Indenture and those required to be made
part of the Indenture by the Trust Indenture Act of 1939 (the "Act") (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture and the
date the Indenture is qualified under the Act. The Securities are subject to all
such terms, and Holders of Securities are referred to the Indenture and the Act
for a statement of them. Each Securityholder, by accepting a Security, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Securities are subordinated in right of payment to all
Senior Indebtedness of the Issuer to the extent and in the manner provided in
the Indenture. Each Holder of a Security, by accepting a Security, agrees to
such subordination, authorizes the Trustee to give effect to such subordination
and appoints the Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent not
defined herein shall have the meanings assigned to them in the Indenture.
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5. Optional Redemption.
(a) The Securities are not redeemable prior to August 1,
2003,except as provided in clause (b) or (c) below of this paragraph 5. On and
after such date, the Securities may be redeemed at any time, in whole or in
part, at the option of the Issuer, at redemption prices (expressed as
percentages of the principal amount) set forth below, if redeemed during the
12-month period beginning August 1 of the year indicated below, in each case
together with interest accrued and unpaid to but excluding the date fixed for
redemption:
Year Percentage
2003.......................................................... 104.938%
2004.......................................................... 103.292%
2005.......................................................... 101.646%
2006 and thereafter........................................... 100.000%
(b) At any time prior to August 1, 2001, the Issuer may
redeem up to 35% of the principal amount of original principal amount of the
Securities with the Net Cash Proceeds of one or more Equity Offerings of the
Issuer or CCI or of a Strategic Equity Investment, at a redemption price in cash
equal to (expressed as a percentage of the principal amount) 109.875% of the
principal amount thereof, plus accrued and unpaid interest to the date fixed for
redemption; provided, however, that at least 65% in aggregate principal amount
of the Securities originally issued remains outstanding immediately after any
such redemption (excluding any Securities owned by the Issuer or any of its
Affiliates). Any such redemption pursuant to this paragraph will be required to
occur within 45 days following the closing of any such Equity Offering or
Strategic Equity Investment.
(c) Upon the occurrence of a Change of Control, the
Issuer may redeem all, but not less than all, the Securities in cash, at a
redemption price equal to the principal amount thereof plus accrued and unpaid
interest to the date of redemption plus the Applicable Premium. Notice of
redemption of the Securities pursuant to this paragraph shall be mailed to
holders of the Securities not more than 30 days following the occurrence of a
Change of Control. The Issuer may not redeem Securities pursuant to this
paragraph if it has made a Change of Control Offer with respect to such Change
of Control.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at
least 30 and not less than 60 days before the redemption date to each Holder of
Securities to be redeemed at the address appearing in the register of Securities
maintained by the Registrar. Securities in denominations larger than $1,000 may
be redeemed in part. On and after the redemption date, interest ceases to accrue
on those Securities or portion of them called for redemption.
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7. Purchase upon Occurrence of a
Change of Control.
Within 30 days of the occurrence of a Change of Control, the
Issuer will offer to purchase the Securities, in whole and not in part, at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the
owner of it for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee or Paying Agent will repay the funds to the
Issuer at its request. After such repayment Holders of Securities entitled to
such funds must look to the Issuer for payment unless an abandoned property law
designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or United States Government Obligations sufficient for such payment or
redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities, and any past default
or compliance with any provision may be waived with the consent of the Holders
of a majority in principal amount of the outstanding Securities. Without notice
to or the consent of any Holder, the Issuer, any Subsidiary Guarantors and the
Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency, or to make any change that does not
materially and adversely affect the rights of any Holder of Securities.
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13. Restrictive Covenants.
The Securities are general unsecured Senior Subordinated
Indebtedness of the Issuer limited to the aggregate principal amount of
$125,000,000. The Indenture restricts, among other things, the ability of the
Issuer or any of its Restricted Subsidiaries to permit any Liens to be imposed
on their assets, to make certain payments and investments, limits the
Indebtedness which the Issuer and its Restricted Subsidiaries may incur and
limits the terms on which the Issuer and its Restricted Subsidiaries may engage
in Asset Sales. The Issuer is also obligated under certain circumstances to make
an offer to purchase Securities with the net cash proceeds of certain Asset
Sales. The Issuer must report annually to the Trustee on compliance with certain
covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Issuer to
consolidate with, merge with or into or transfer its assets to another person is
conditioned upon certain requirements, including certain financial requirements
applicable to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, to the date the Securities become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Issuer.
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Issuer or its Affiliates, and may otherwise
deal with the Issuer or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee, incorporator, limited or
general partner or stockholder, as such, of the Issuer or any Subsidiary
Guarantor shall not have any liability for any obligations of the Issuer or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantee or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
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19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE, THIS SECURITY AND ANY SUBSIDIARY GUARANTEE WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
22. Subsidiary Guarantees.
This Security may after the date hereof be entitled to certain
Subsidiary Guarantees made for the benefit of the Holders. Reference is hereby
made to the Indenture for the terms of any Subsidiary Guarantee (including any
terms of subordination of such Subsidiary Guarantee that may apply).
The Issuer will furnish to any Holder of record of Securities
upon written request and without charge a copy of the Indenture.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
-------------------------------------------------------
agent to transfer this Security on the books of the Issuer. The agent may
substitute another to act for him.
Dated: Signed:
----------- ------------------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:(1)
----------------------------------------------------------
------------------------
(1) Signature must be guaranteed by a member of the Medallion Signature
Program.
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