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Exhibit 4.1
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DIAMOND CABLE COMMUNICATIONS PLC
Company
TO
THE BANK OF NEW YORK
Trustee
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INDENTURE
Dated as of February 27, 1997
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$420,500,000
10 3/4% Senior Discount Notes due February 15, 2007
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Diamond Cable Communications Plc
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF FEBRUARY 27, 1997
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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Section 310(a)(1) ................................................ 609
(a)(2) ................................................ 609
(a)(3) ................................................ Not Applicable
(a)(4) ................................................ Not Applicable
(b) ................................................... 608
610
Section 311(a) ................................................... 613
(b) ................................................... 613
Section 312(a) ................................................... 701
702(a)
(b) ................................................... 702(b)
(c) ................................................... 702(c)
Section 313(a) ................................................... 703(a)
(b) ................................................... 703(a)
(c) ................................................... 703(a)
(d) ................................................... 703(b)
Section 314(a) ................................................... 704
(b) ................................................... Not Applicable
(c)(1) ................................................ 102
(c)(2) ................................................ 102
(c)(3) ................................................ Not Applicable
(d) ................................................... Not Applicable
(e) ................................................... 102
Section 315(a) ................................................... 601
(b) ................................................... 602
(c) ................................................... 601
(d) ................................................... 601
(e) ................................................... 514
Section 316(a) ................................................... 101
(a)(1)(A) ............................................. 502
512
(a)(1)(B) ............................................. 513
(a)(2) ................................................ Not Applicable
(b) ................................................... 508
Section 317(a)(1) ................................................ 503
(a)(2) ................................................ 504
(b) ................................................... 1003
Section 318(a) ................................................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
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TABLE OF CONTENTS
PAGE
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PARTIES ................................................................... 1
Recitals of the Company ................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Accreted Value ............................................... 2
Act .......................................................... 2
Additional Amounts ........................................... 2
Affiliate .................................................... 2
Annualized Consolidated Debt to Cash Flow Ratio .............. 2
Applicable Procedures ........................................ 2
Asset Acquisition ............................................ 3
Asset Disposition ............................................ 3
Attributable Value ........................................... 3
Authenticating Agent ......................................... 3
Board of Directors ........................................... 3
Board Resolution ............................................. 3
Business Day ................................................. 4
Cable Acquisition ............................................ 4
Cable Business ............................................... 4
Capital Lease Obligation ..................................... 4
Cash Equivalent .............................................. 4
Cash Interest Date ........................................... 5
Change of Control ............................................ 5
Commission ................................................... 5
Common Equity ................................................ 5
Company ...................................................... 5
Company Request; Company Order ............................... 5
Consolidated Income Tax Expense .............................. 5
Consolidated Interest Expense ................................ 5
Consolidated Net Income ...................................... 5
Consolidated Operating Cash Flow ............................. 6
Consolidated Subsidiaries .................................... 6
Consolidated Tangible Assets ................................. 6
Corporate Trust Office ....................................... 6
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
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Corporation ................................................. 6
Covenant defeasance ......................................... 6
Currency Hedging Agreements ................................. 7
Debt ........................................................ 7
Default Amount .............................................. 7
Defaulted Interest .......................................... 7
defeasance .................................................. 7
Definitive Registered Security .............................. 7
Director .................................................... 7
Disqualified Equity ......................................... 7
Equity Homes ................................................ 7
Equity Securities ........................................... 8
Event of Default ............................................ 7
Excess Proceeds ............................................. 8
Exchange Act ................................................ 8
Exchange Offer .............................................. 8
Exchange Security ........................................... 8
Expiration Date ............................................. 8
Global Security ............................................. 8
Guarantee ................................................... 8
Holder ...................................................... 8
Incur ....................................................... 8
Indenture ................................................... 9
Initial Purchasers .......................................... 9
Initial Regulation S Securities ............................. 9
Insolvency Law .............................................. 9
Interest Payment Date ....................................... 9
Interest Rate Protection Obligation ......................... 9
Investment .................................................. 9
Lien ........................................................ 9
Material License ............................................ 9
Maturity .................................................... 10
Net Available Proceeds ...................................... 10
Non-Recourse Debt ........................................... 10
Non-Restricted Subsidiary ................................... 10
Offer ....................................................... 11
Offer to Purchase ........................................... 11
Officers' Certificate ....................................... 13
Opinion of Counsel .......................................... 13
Original Security
Outstanding ................................................. 13
pari passu .................................................. 14
Paying Agent ................................................ 14
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Permitted Holder ............................................ 14
Person ...................................................... 14
Predecessor Security ........................................ 14
Purchase Agreement .......................................... 14
Purchase Amount ............................................. 14
Purchase Date ............................................... 14
Purchase Price .............................................. 14
Redemption Date ............................................. 14
Redemption Price ............................................ 14
Registration Rights Agreement ............................... 15
Regular Record Date ......................................... 15
Regulation S ................................................ 15
Regulation S Certificate .................................... 15
Regulation S Global Security ................................ 15
Regulation S Legend ......................................... 15
Regulation S Securities ..................................... 15
Related Person .............................................. 15
Replacement Asset ........................................... 15
Resale Registration Statement ............................... 15
Restricted Global Security .................................. 15
Restricted Group ............................................ 15
Restricted Payments ......................................... 15
Restricted Period ........................................... 15
Restricted Security ......................................... 15
Restricted Securities Certificate ........................... 15
Restricted Securities Legend ................................ 16
Restricted Subsidiary ....................................... 16
Rule 144A ................................................... 16
Rule 144A Securities ........................................ 16
Sale and Leaseback Transaction .............................. 16
SEC Registered Security ..................................... 16
Securities .................................................. 16
Security Register; Security Registrar ....................... 16
Senior Bank Facility ........................................ 16
Significant Subsidiary ...................................... 16
Special Interest ............................................ 16
Special Record Date ......................................... 17
Stated Maturity ............................................. 17
Step-Down Date .............................................. 17
Step-Up ..................................................... 17
Subsidiary .................................................. 17
Successor Securities ........................................ 17
Taxes ....................................................... 17
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Total Consolidated Debt ..................................... 17
Trade Obligation ............................................ 17
Trust Indenture Act ......................................... 18
Trustee ..................................................... 18
U.S. Government Obligations ................................. 18
Voting Interest ............................................. 18
Weighted Average Life ....................................... 18
Wholly Owned ................................................ 18
SECTION 102. Compliance Certificates and Opinions ........................ 18
SECTION 103. Form of Documents Delivered
to Trustee ................................................ 19
SECTION 104. Acts of Holders; Record Date ................................ 20
SECTION 105. Notices, Etc., to Trustee and Company ....................... 21
SECTION 106. Notice to Holders; Waiver ................................... 21
SECTION 107. Conflict with Trust Indenture Act ........................... 22
SECTION 108. Effect of Headings and
Table of Contents ......................................... 22
SECTION 109. Successors and Assigns ...................................... 22
SECTION 110. Separability Clause ......................................... 22
SECTION 111. Benefits of Indenture ....................................... 22
SECTION 112. Governing Law ............................................... 23
SECTION 113. Legal Holidays .............................................. 23
SECTION 114. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities ........................ 23
SECTION 115. Conversion of Currency ...................................... 24
SECTION 116. Currency Equivalent ......................................... 25
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally ............................................. 25
SECTION 202. Form of Face of Global Security ............................. 26
SECTION 203. Form of Face of Definitive Registered Security .............. 30
SECTION 204. Form of Reverse of Security ................................. 33
SECTION 205. Form of Trustee's Certificate of Authentication ............. 41
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ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms ............................................. 41
SECTION 302. Denominations ............................................... 42
SECTION 303. Execution, Authentication, Delivery and Dating .............. 42
SECTION 304. Temporary Securities ........................................ 43
SECTION 305. Transfer and Exchange ....................................... 43
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ............ 49
SECTION 307. Payment of Interest; Interest Rights Preserved .............. 50
SECTION 308. Persons Deemed Owners ....................................... 51
SECTION 309. Cancellation ................................................ 51
SECTION 310. Computation of Interest ..................................... 51
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture ..................... 52
SECTION 402. Application of Trust Money .................................. 53
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default ........................................... 53
SECTION 502. Acceleration of Maturity; Rescission and Annulment .......... 55
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee ................................................... 57
SECTION 504. Trustee May File Proofs of Claim ............................ 57
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities ................................................ 58
SECTION 506. Application of Money Collected .............................. 58
SECTION 507. Limitation on Suits ......................................... 59
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ...................................... 59
SECTION 509. Restoration of Rights and Remedies .......................... 60
SECTION 510. Rights and Remedies Cumulative .............................. 60
SECTION 511. Delay or Omission Not Waiver ................................ 60
SECTION 512. Control by Holders .......................................... 60
SECTION 513. Waiver of Past Defaults ..................................... 61
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SECTION 514. Undertaking for Costs ....................................... 61
SECTION 515. Waiver of Stay or Extension Laws ............................ 61
SECTION 516. No Personal Liability of Directors,
Employees and Shareholders ................................ 62
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ......................... 62
SECTION 602. Notice of Defaults .......................................... 62
SECTION 603. Certain Rights of Trustee ................................... 63
SECTION 604. Not Responsible for Recitals or Issuance of Securities ...... 64
SECTION 605. May Hold Securities ......................................... 64
SECTION 606. Money Held in Trust ......................................... 64
SECTION 607. Compensation and Reimbursement .............................. 64
SECTION 608. Disqualification; Conflicting Interests ..................... 65
SECTION 609. Corporate Trustee Required; Eligibility ..................... 65
SECTION 610. Resignation and Removal; Appointment of Successor ........... 65
SECTION 611. Acceptance of Appointment by Successor ...................... 67
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business ................................. 67
SECTION 613. Preferential Collection of Claims Against Company ........... 67
SECTION 614. Appointment of Authenticating Agent ......................... 67
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders ................................................ 69
SECTION 702. Preservation of Information; Communications to Holders ...... 69
SECTION 703. Reports by Trustee .......................................... 70
SECTION 704. Reports by Company .......................................... 70
SECTION 705. Registration Rights ......................................... 70
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms ........ 71
SECTION 802. Successor Substituted ...................................... 72
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders ......... 73
SECTION 902. Supplemental Indentures with Consent of Holders ............ 74
SECTION 903. Execution of Supplemental Indentures ....................... 75
SECTION 904. Effect of Supplemental Indentures .......................... 75
SECTION 905. Conformity with Trust Indenture Act ........................ 75
SECTION 906. Reference in Securities to Supplemental Indentures ......... 75
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest ................. 75
SECTION 1002. Maintenance of Office or Agency ............................ 76
SECTION 1003. Money for Security Payments to be Held in Trust ............ 76
SECTION 1004. Existence .................................................. 77
SECTION 1005. Maintenance of Properties .................................. 77
SECTION 1006. Payment of Taxes and Other Claims .......................... 78
SECTION 1007. Maintenance of Insurance ................................... 78
SECTION 1008. Limitation on Consolidated Debt
and Disqualified Equity .................................. 80
SECTION 1009. Limitation on Restricted Payments .......................... 80
SECTION 1010. Limitations Concerning Distributions by
and Transfers to Restricted Group ........................ 82
SECTION 1011. Limitation on Liens ........................................ 83
SECTION 1012. Limitation on Sale and Leaseback Transactions .............. 84
SECTION 1013. Limitation on Transactions with
Affiliates and Related Persons ........................... 85
SECTION 1014. Limitation on Certain Asset Dispositions ................... 85
SECTION 1015. Change of Control .......................................... 87
SECTION 1016. Additional Amounts ......................................... 89
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SECTION 1017. Provision of Financial Information ......................... 90
SECTION 1018. Statement by Officers as to Default; Compliance
Certificates ............................................. 90
SECTION 1019. Waiver of Certain Covenants ................................ 91
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption ........................................ 91
SECTION 1102. Applicability of Article ................................... 92
SECTION 1103. Election to Redeem; Notice to Trustee ...................... 92
SECTION 1104. Selection by Trustee of Securities to Be Redeemed .......... 92
SECTION 1105. Notice of Redemption ....................................... 92
SECTION 1106. Deposit of Redemption Price ................................ 93
SECTION 1107. Securities Payable on Redemption Date ...................... 93
SECTION 1108. Securities Redeemed in Part ................................ 94
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance ............................................... 94
SECTION 1202. Defeasance and Discharge ................................... 94
SECTION 1203. Covenant Defeasance ........................................ 95
SECTION 1204. Conditions to Defeasance or Covenant Defeasance ............ 95
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions ........................... 97
SECTION 1206. Reinstatement .............................................. 98
TESTIMONIUM ..............................................................
SIGNATURES ...............................................................
ACKNOWLEDGMENTS ..........................................................
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INDENTURE, dated as of February 27, 1997 between Diamond Cable
Communications Plc, a public limited company registered in England with
registered number 2965241, (herein called the "Company"), having its registered
office at Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, XX0 0XX, Xxxxxxx and The
Bank of New York, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 10 3/4%
Senior Discount Notes due February 15, 2007 (the "Securities") of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture. The Securities
may consist of either or both of Original Securities or Exchange Securities,
each as defined herein. The Original Securities and the Exchange Securities
shall rank pari passu.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles (whether or not such is indicated
herein), and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted as of the date of the Indenture;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles but shall not include the accounts of
NonRestricted Subsidiaries, except to the extent of dividends and
distributions actually paid to the Company or one of the Restricted
Subsidiaries; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Accreted Value" means, as of any date of determination prior to the
Cash Interest Date, the sum of (a) the initial offering price of each Security
and (b) the portion of the excess of the principal amount of each Security over
such initial offering price which shall have been amortized by the Company
through such date, such amount to be so amortized on a daily basis and
compounded semiannually on each August 15 and February 15, at the rate of 10
3/4% per annum from the date of issuance of the Security through the date of
determination computed on the basis of a 360-day year of twelve 30-day months.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1016.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Annualized Consolidated Debt to Cash Flow Ratio" for any Person means
for any fiscal quarter the ratio of (i) Total Consolidated Debt of such Person
as of the end of such fiscal quarter to (ii) Consolidated Operating Cash Flow of
such Person for such fiscal quarter multiplied by four.
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"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of any depository for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Asset Acquisition" means (i) any capital contribution (including,
without limitation, by means of transfers of cash or other property to others or
payments for property or services for the account or use of others) by any
member of the Restricted Group in any other Person, or any acquisition or
purchase of equity interests in any other Person by any member of the Restricted
Group, in either case pursuant to which such Person shall become a Restricted
Subsidiary or shall be merged with or into any member of the Restricted Group or
(ii) any acquisition by any member of the Restricted Group of the assets of any
Person which constitute substantially all of an operating unit or line of
business of such Person or which is otherwise outside of the ordinary course of
business (including, for the avoidance of doubt, a prospective licensee that
subsequently acquires a license to operate a cable television and/or telephone
and/or telecommunications system).
"Asset Disposition" means any transfer, conveyance, sale, lease or
other disposition by the Company or any of its Restricted Subsidiaries
(including by way of consolidation or merger) resulting in Net Available
Proceeds in excess of 250,000 pounds sterling of (i) shares or other ownership
interest of a Subsidiary of the Company, (ii) substantially all of the assets of
the Company or any Subsidiary representing a division or line of business, or
(iii) other assets or rights outside of the ordinary course of business.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable, and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the initial term thereof as determined in
accordance with generally accepted accounting principles, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capital Lease
Obligation with like term in accordance with generally accepted accounting
principles. The net amount of rent required to be paid under any such lease for
any such period shall be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or The City of London are authorized or obligated by law or executive order to
close.
"Cable Acquisition" means an Asset Acquisition of properties or assets
to be used in a Cable Business or of equity interests in any Person that becomes
a Restricted Subsidiary or, subject to Section 1009, a Non-Restricted Subsidiary
as a result of such Asset Acquisition, provided that such Person's assets and
properties consist principally of properties or assets that will be used in a
Cable Business.
"Cable Business" means any business operating a cable television and/or
telephone and/or telecommunications system or any business reasonably related
thereto, including, without limitation, the production or provision of
programming as well as any business conducted by any member of the Restricted
Group on the date on which the Securities are first issued.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property which is required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalent" means, at any time, (i) any evidence of Debt issued
or directly and fully guaranteed or insured by the government of an Approved
Jurisdiction or any agency or instrumentality thereof (provided that the full
faith and credit of the relevant Approved Jurisdiction is pledged in support
thereof); (ii) certificates of deposit or acceptances of any financial
institution that has combined capital and surplus and undivided profits of not
less than $50,000,000 (or the equivalent thereof in another currency) and has a
long term debt rating of at least "AA" by Standard & Poor's Corporation or at
least "Aa3" by Xxxxx'x Investor Service or if not rated by either of those
rating agencies the equivalent rating from another Approved Rating Agency; (iii)
commercial paper issued by a corporation organized under the laws of any
Approved Jurisdiction and rated at least A-1 by Standard & Poor's Corporation or
at least P-1 by Xxxxx'x Investor Service or if not rated by either of those
rating agencies the equivalent rating from another Approved Rating Agency; (iv)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the government of an
Approved Jurisdiction; and (v) any other investment, instrument or cash balance,
provided, that in each of clauses (i) through (v) above such instrument shall be
considered a Cash Equivalent within the meaning of this definition only to the
extent that such instrument would have been classified as a "cash equivalent" in
accordance with the accounting principles applied to the Company's audited
consolidated balance sheet as
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of December 31, 1995. "Approved Jurisdiction" means the United States of
America, Canada, the United Kingdom and any other member nation of the
Organization for Economic Cooperation and Development. "Approved Rating Agency"
means Standard & Poor's Corporation, Xxxxx'x Investor Service and any other
recognized rating agency that provides or assigns credit rating for debt
securities similar to the New Senior Notes and that shall have been approved by
the Trustee upon the written request of the Company from time to time.
"Cash Interest Date" means February 15, 2002.
"Change of Control" has the meaning specified in Section 1015.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Equity" of any Person means Equity Securities of such Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Equity Securities of any
other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chief Executive Officer, its Managing
Director or a Director, and by its Director of Finance, its Company Secretary or
an Assistant Company Secretary, and delivered to the Trustee.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person, as charged in
arriving at Consolidated Net Income for such period.
"Consolidated Interest Expense" of any Person means for any period the
interest expense (without deduction of interest income) of such Person for such
period determined on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers
acceptances or similar facilities; (iii) fees with respect to interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements;
(iv) preferred stock dividends (other than in respect of preferred stock held by
such Person or a Wholly Owned subsidiary of such Person) declared and payable in
such period in cash; and (v) the portion of any rental obligation allocable to
interest expense under generally accepted accounting principles.
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"Consolidated Net Income" of any Person means for any period the net
income (or loss) of such Person for such period determined on a consolidated
basis in accordance with generally accepted accounting principles; provided that
there shall be excluded therefrom (a) the net income (or loss) of any Person
acquired by such Person or a Subsidiary of such Person in a transaction
accounted for under the pooling-of-interests method for any period prior to the
date of such transaction, (b) the net income (but not net loss) of any
Restricted Subsidiary of such Person which is subject to restrictions which
prevent the payment of dividends or the making of distributions (by loans,
advances, intercompany transfers or otherwise) to such Person to the extent of
such restrictions, (c) the net income (or loss) of any Person that is not a
Consolidated Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid to a member of the Restricted
Group by such other Person during such period, (d) gains or losses on Asset
Dispositions and (e) all extraordinary gains and extraordinary losses.
"Consolidated Operating Cash Flow" of any Person means for any period
(a) the sum of (i) Consolidated Net Income for such period; (ii) Consolidated
Interest Expense for such period; (iii) Consolidated Income Tax Expense for such
period; (iv) the depreciation and amortization expense included in the
consolidated income statement of such Person for such period; and (v) other
non-cash charges (other than trading and operating items in the ordinary course
of business) deducted from consolidated revenues in determining Consolidated Net
Income for such period (including any foreign currency translation losses),
minus (b) non-cash items (other than trading and operating items in the ordinary
course of business), increasing consolidated revenues in determining
Consolidated Net Income for such period (including any foreign currency
translation gains).
"Consolidated Subsidiaries" of any Person means all subsidiaries and
other equity investees of such Person that would be accounted for on a
consolidated basis in such Person's financial statements in accordance with
generally accepted accounting principles.
"Consolidated Tangible Assets" of any Person, means the total assets of
such Person and its Restricted Subsidiaries consolidated, as determined in
accordance with generally accepted accounting principles, less (i) the net book
value of all its licenses, patents, patent applications, copyrights, trademarks,
trade names, goodwill, non-compete agreements or organizational expenses and
other like intangibles, (ii) unamortized Debt discount and expense, (iii) all
reserves for depreciation, obsolescence, depletion and amortization of its
properties and (iv) all other proper reserves which in accordance with generally
accepted accounting principles should be provided in connection with the
business conducted by such Person; provided that with respect to the Company and
its Consolidated Subsidiaries, adjustments following the date of the Indenture
to the accounting books and records of the Company and its Consolidated
Subsidiaries in accordance with Accounting Principles Board Opinions Nos. 16 and
17 (or successor opinions thereto), or otherwise resulting from the acquisition
of control of the Company by another Person shall not be given effect to.
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, New York, at which at any
particular time its corporate trust business shall be principally administered.
-6-
17
"Corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Covenant defeasance" has the meaning specified in Section 1203.
"Currency Hedging Agreements" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Restricted Subsidiaries against fluctuations
in currency values to the extent relating to (i) Debt and/or (ii) obligations to
purchase assets, properties or services incurred in the ordinary course of
business and not for speculative purposes; provided that such Currency Hedging
Agreements do not increase the Debt or other obligations of the Company and its
subsidiaries outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) every net
obligation under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements of such Person at the time of
determination, and (vii) every obligation of the type referred to in Clauses (i)
through (vi) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed or is responsible or liable
for, directly or indirectly, as obligor, Guarantor or otherwise; provided that
Trade Obligations shall be excluded from the definition of Debt.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1202.
"Definitive Registered Security" means any Security substantially in
the form set forth in Sections 203 and 204 hereof issued in accordance with
Section 305.
"Director", when used with respect to the Company, means any executive
officer who is a director, whether or not designated by a number or a word or
words added before or after the title "director".
"Disqualified Equity" of any Person means any Equity Security of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable,
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18
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the final
Stated Maturity of the Securities.
"Equity Homes" means the product of (i) the number of homes in a
franchise area as set forth in the cable television or telecommunications
licenses relating to such franchise area, and (ii) the percentage of the entity
holding such licenses which is owned directly or indirectly by the Company.
"Equity Securities" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity or capital interests of such Person, including, without limitation,
partnership interests.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1014.
"Exchange Act" refers to the United States Securities Exchange Act of
1934 as it may be amended and any successor act thereto.
"Exchange Offer" has the meaning specified in the form of the face of
either the Global Security set forth in Section 202 or the Definitive Registered
Security set forth in Section 203.
"Exchange Security" means any security issued by the Company (i)
pursuant to the Exchange Offer, (ii) upon the registration of transfer of a
Security registered for resale on a Resale Registration Statement or (iii) upon
the transfer of, or in exchange for, Securities which are Exchange Securities.
"Expiration Date" has the meaning specified in the definition of Offer
to Purchase.
"Global Security" means the Security evidencing all or a part of all
the securities substantially in the form set forth in Sections 202 and 204
hereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Debt, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such Debt, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business, and shall not include
guarantees in the nature of, or in respect of, Trade Obligations.
-8-
19
"Holder" means (a) in the case of any Definitive Registered Security,
the Person in whose name such Definitive Registered Security is registered in
the Security Register and (b) in the case of any Global Security, the bearer
thereof (the "global bearer").
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Xxxxxxx, Sachs & Co. and CIBC Wood Gundy
Securities Corp.
"Initial Regulation S Securities" means the Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement in reliance on Regulation S.
"Insolvency Law" means any United Kingdom, United States (Federal or
State), or other applicable bankruptcy, insolvency, reorganization or similar
law in any applicable jurisdiction.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
"Interest Rate Protection Obligation" of any Person means any interest
rate swap agreement or other similar financial agreement or arrangement designed
to protect such Person against fluctuations in interest rates and pursuant to
which such Person is obligated or may become obligated to make payments;
provided that where such agreement or arrangement xxxxxx Debt, it is with
respect to a notional principal amount that does not exceed the principal amount
of the Debt to which such Increase Rate Protection Obligation relates.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution to any other Person (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of Equity Securities, bonds, notes, debentures or other securities
or evidence of Debt issued by any other Person.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
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20
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Material License" means a direct or indirect ownership interest in a
license to operate a cable television or a cable telephone system held by the
Company or any of its Restricted Subsidiaries which license at the time of
determination covers a number of Equity Homes which equals or exceeds 10% of the
aggregate number of Equity Homes covered by all of the licenses to operate cable
television or cable telephone systems in which the Company or its Restricted
Subsidiaries hold a direct or indirect ownership interest at such time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, instalment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Debt or other obligations relating to such properties or assets or
received in any other noncash form) therefrom by such Person, 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 accrued as a liability as a consequence of such Asset Disposition, (ii) all
payments made by such Person or its Subsidiaries on any Debt which is secured by
a Lien on such assets or on Common Equity of the Person owning such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Debt or Lien or in order to obtain a necessary
consent to such Asset Disposition or by applicable law be repaid out of the
proceeds from such Asset Disposition, and (iii) all distributions and other
payments made to minority interest holders in Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition; provided that minority
holders receive distributions and payments that are in the Company's good faith
judgment comparable in kind to those received by the Company or a Restricted
Subsidiary.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to which
none of the Company, nor any of its Restricted Subsidiaries (a) provides credit
support (including any undertaking, agreement or instrument which would
constitute Debt); (b) is directly or indirectly liable; or (c) constitutes the
lender; and (ii) no default with respect to which (including any rights which
the holders thereof may have to take enforcement action against a Non-Restricted
Subsidiary) would permit (upon notice, lapse of time or both) any holders of any
other Debt of the Company or any of its Restricted Subsidiaries to declare a
default on such other Debt or cause the payment thereof to be accelerated or
payable prior to its stated maturity.
"Non-Restricted Subsidiary" of a Person means a Subsidiary of a Person
that (i) at the time of its designation as a Non-Restricted Subsidiary has not
acquired any assets (unless the acquisition of such assets constitutes a
Restricted Payment permitted by Section 1009), at any previous time, directly or
indirectly from such Person or any of its Subsidiaries and (ii) has no Debt
other than Debt that is, with respect to such Person, Non-Recourse Debt; (unless
the extent to which such Person is the lender for, or is responsible for such
Debt, constitutes a
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21
Restricted Payment permitted by Section 1009) provided, however, that at the
time of such designation, after giving pro forma effect to such designation, the
Annualized Consolidated Debt to Cash Flow Ratio of such Person is equal to or
less than the Annualized Consolidated Debt to Cash Flow Ratio of such Person
immediately preceding such designation; provided, further, that if the
Annualized Consolidated Debt to Cash Flow Ratio of the Company immediately
preceding such designation is 7.0 or less, then the Annualized Consolidated Debt
to Cash Flow Ratio of the Company after giving pro forma effect to such
designation may be up to 0.5 greater than such ratio immediately preceding such
designation. No Restricted Subsidiary may be redesignated as a Non-Restricted
Subsidiary unless at the time of such redesignation the provisions in clauses
(i) and (ii) in this definition are currently met and the Trustee has received a
copy of a Board Resolution to such effect.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
provided to the Trustee by such Holder or appearing in the Security Register on
the date of the Offer offering to purchase up to the principal amount of
Securities specified in such Offer at the purchase price specified in such Offer
(as determined pursuant to this Indenture). Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "Expiration
Date") of the Offer to Purchase which shall be, subject to any contrary
requirements of applicable law, not less than 30 days or more than 60 days after
the date of such Offer and a settlement date (the "Purchase Date") for purchase
of Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee in writing at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to Section 1017 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
Clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
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22
(3) the aggregate principal amount at maturity of the
Outstanding Securities offered to be purchased by the Company pursuant
to the Offer to Purchase (including, if less than all Outstanding
Securities, the manner by which such has been determined pursuant to
the Section hereof requiring the Offer to Purchase) (the "Purchase
Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount at maturity of Securities accepted
for payment (as specified pursuant to this Indenture) (the "Purchase
Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his
tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
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23
(12) that in case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same type, of any
authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased portion
of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the Managing Director or a Director, and by the Director of
Finance, the Secretary or an Assistant Secretary, of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Securities" means Securities that are not Exchange
Securities.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the
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24
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"pari passu", when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person, means that each such Debt (a)
either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Holder" means European Cable Capital Partners L.P., a
limited partnership organized under the laws of Delaware, and any of its
partners existing on the date of the Indenture.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement, dated as of February
27, 1997, between the Company and the Initial Purchasers, as such agreement may
be amended from time to time.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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25
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement of even date herewith between the Company and the Purchasers as
defined therein.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the February 1 or August 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the forms of face of Security set forth in Section 202 and
Section 203 to be placed upon a Regulation S Global Security.
"Regulation S Securities" means all Securities required pursuant to
Section 305(c) to bear a Regulation S Legend. Such term includes the Regulation
S Global Security.
"Related Person" of any Person means, without limitation, any other
Person owning (a) 5% or more of the outstanding Common Equity of such Person or
(b) 5% or more of the Voting Interest of such Person.
"Replacement Asset" has the meaning specified in Section 1014.
"Resale Registration Statement" shall mean a registration statement
under the Securities Act registering the Securities for resale pursuant to the
terms of the Registration Rights Agreement.
"Responsible Officer" means, with respect to the Trustee, any vice
president, any assistant vice president, the secretary, any assistant secretary,
any assistant treasurer, any trust officer or assistant trust officer, employed
by the Trustee's corporate trust department or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers and also means, with respect to a particular corporate
trust or agency matter, any other officer to whom such matter is referred
because of his or her knowledge and familiarity with the particular subject.
"Restricted Group" means the Company and the Restricted Subsidiaries.
"Restricted Payments" has the meaning specified in Section 1009.
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26
"Restricted Period" means the period of 41 consecutive days beginning
on and including the later of (i) the day on which Securities are first offered
to persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the day on which the closing of the offering of Securities
pursuant to the Purchase Agreement occurs.
"Restricted Security" means all Securities required pursuant to Section
305(c) to bear a Restricted Securities Legend. Such term includes the Restricted
Global Security.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in the form
of the legend required in the forms of face of Securities set forth in Section
202 and Section 203 to be placed upon a Restricted Security.
"Restricted Subsidiary" of any person means any Subsidiary of such
Person other than a Non-Restricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means all Securities initially distributed in
connection with the offering of the Securities by the Purchasers in reliance
upon Rule 144A.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 365 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"SEC Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Bank Facility" means the senior bank loan and guarantee
facility, dated August 5, 1996, between Jewel Holdings Limited, NatWest Capital
Markets and the other parties
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27
thereto, as such facility has been or may be amended, modified, supplemented,
replaced, renewed, extended or restated from time to time (including, for the
avoidance of doubt, through the supplemental agreement dated February 13, 1997).
"Significant Subsidiary" means a Subsidiary that qualifies as a
"significant subsidiary" under Rule 1-01 of the Commission's Regulation S-X.
"Special Interest" has the meaning set forth in the form of face of the
Global Security contained in Section 202 or the Definitive Registered Security
in Section 203. Unless the context otherwise requires, references herein to
"interest" on the Securities shall include Special Interest.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of face of the
Global Security contained in Section 202 or the Definitive Registered Security
in Section 203.
"Step-Up" has the meaning set forth in the form of face of the Global
Security contained in Section 202 or the Definitive Registered Security in
Section 203.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Interest of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Taxes" has the meaning specified in Section 1016.
"Total Consolidated Debt" means, at any date of determination, an
amount equal to the aggregate amount of all Debt of the Company and its
Restricted Subsidiaries outstanding as of the date of determination, determined
on a consolidated basis.
"Trade Obligation" of a Person means:
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28
(i) obligations of such Person to pay the purchase price of
assets or services purchased in the ordinary course of business
including, without limitation, obligations incurred in respect of any
documentary letter of credit or xxxx or exchange issued in respect of
any such purchase;
(ii) obligations of such Person in respect of any xxxx of
exchange or promissory note drawn, or accepted, issued or endorsed in
the ordinary course of business, including, without limitation,
indebtedness in respect of any monies raised by way of sale,
discounting or otherwise in respect of any such xxxx or note; and
(iii) obligations of such Person in respect of any Guarantee of
any obligation of the type specified in paragraph (i) or (ii) above,
except to the extent that such obligation is treated as indebtedness
under generally accepted accounting principles.
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Government Obligations" has the meaning specified in Section
1204.
"Voting Interest" of any Person means Equity Securities of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Weighted Average Life" means, as of the date of determination, with
respect to any Debt or Disqualified Equity, the quotient obtained by dividing
(i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payments of
such Debt or redemption or repurchase payments on such Disqualified Equity and
the amount of such principal payments or redemption or repurchase payments, by
(ii) the sum of all such principal value or redemption or repurchase payments.
"Wholly Owned" means with respect to any Subsidiary or Restricted
Subsidiary of any Person means a Subsidiary (or a Restricted Subsidiary) of such
Person all of the outstanding Equity Securities or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiary (or Restricted
Subsidiaries) of such Person or by such Person and one or more Wholly Owned
Subsidiary (or Restricted Subsidiaries) of such Person.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishings
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or
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officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstance permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Definitive Registered Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders of Definitive Registered Securities on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
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(d) The ownership of Definitive Registered Securities shall be proved
by the Security Register.
(e) In the case of the Global Security, its Holder shall be entitled to
give or take, or vote on, any relevant action with respect to all or only a
portion of the principal amount at maturity represented by the Global Security
as of the record date fixed for Definitive Registered Securities, as indicated
by Schedule A to the Global Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount at maturity of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
(g) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporation Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
registered office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the
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Security Register, or in the case of any Global Security, at the address
provided to the Trustee by the Holder thereof, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, directive, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Until such time as this Indenture shall be qualified under the Trust Indenture
Act, this Indenture, the Company and the Trustee shall as a matter of contract
be deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Indenture were so
qualified on the date hereof.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that no additional interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Purchase Date or Stated Maturity, as the case may be, on account of such
delay.
SECTION 114. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed CT Corporation Systems as its authorized agent upon which process
may be serviced in any suit or proceeding arising out of or relating to the
Securities or this Indenture that may be instituted in any Federal or State
court in the Borough of Manhattan, The City of New York or brought under Federal
or State securities laws or brought by the Trustee in its capacity as a trustee
hereunder, and acknowledges that CT Corporation Systems has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding or any claim of inconvenient forum, and
(iii) agrees that service of process upon CT Corporation Systems and written
notice of said service to it (mailed or delivered to its Secretary at its
principal office at the address specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee) shall be deemed in every respect effective service of
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process upon it in any such suit or proceeding. The Company further agrees to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation Systems in full force and effect so long as this
Indenture shall be in full force and effect and so long as any of the Securities
shall be outstanding.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, hereby
irrevocably waives such immunity in respect of its respective obligations under
this Indenture and the Securities to the fullest extent permitted by law.
SECTION 115. Conversion of Currency.
The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and this
Indenture:
(a) (i) If for the purpose of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes
necessary to convert into any other currency (the "judgment currency")
an amount due in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public of
public and private debts ("U.S. Dollars"), then the conversion shall be
made at the rate of exchange prevailing on the Business Day before the
day on which the judgment is given or the order of enforcement is made,
as the case may be (unless a court shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given
or an order of enforcement is made, as the case may be (or such other
date as a court shall determine), and the date of receipt of the amount
due, the Company will pay such additional (or, as the case may be, such
lesser) amount, if any, as may be necessary so that the amount paid in
the judgment currency when converted at the rate of exchange prevailing
on the date of receipt will produce the amount in U.S. Dollars
originally due.
(b) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Securities and this
Indenture, or any judgment or order rendered in respect thereof, shall
remain outstanding, the Company shall indemnify and hold the Holders
and the Trustees harmless against any deficiency arising or resulting
from any variation in rates of exchange between (1) the date as of
which the equivalent of the amount in U.S. Dollars due or contingently
due under the Securities and this Indenture (other than under this
Subsection (b)) is calculated for the purposes of such winding-up and
(2) the final date for the filing of proofs of claim in such
winding-up. For the purpose of this Subsection (b), the final date for
the filing of proofs of claim in the winding-up of the Company, shall
be the date fixed by the liquidator or otherwise in accordance with the
relevant provisions of applicable law as
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being the latest practicable date as at which liabilities of the
Company may be ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The term "rate(s) of exchange" shall mean the rate of
exchange quoted by The Bank of New York at its central foreign exchange
desk in its head office in New York, New York at 12:00 noon (New York
City time) for purchases of U.S. Dollars with the judgment currency
other than U.S. Dollars referred to in Subsections (a) and (b) above
and includes any premiums and costs of exchange payable.
SECTION 116. Currency Equivalent.
Except as provided in Section 115, for purposes of the construction of
the terms of this Indenture or of the Securities, in the event that any amount
is stated herein in the currency of one nation (the "First Currency"), as of any
date such amount shall also be deemed to represent the amount in the currency of
any other relevant nation (the "Other Currency") which is required to purchase
such amount in the First Currency at the rate of exchange quoted by The Bank of
New York at its central foreign exchange desk in its head office in New York,
New York at 12:00 noon (New York City time) on the date of determination.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
legends, insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
The Securities will be initially issued as one or more Global
Securities. Each Global Security authenticated under this Indenture shall be in
global bearer form, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
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Upon their original issuance, Rule 144A Securities and Initial
Regulation S Securities shall be issued in the form of separate Global
Securities. The Global Security representing Rule 144A Securities, together with
its Successor Securities which are Global Securities other than the Regulation S
Global Security, are collectively herein called the "Restricted Global
Security". The Global Security representing Initial Regulation S Securities,
together with its Successor Securities which are Global Securities other than
the Restricted Global Security, are collectively herein called the "Regulation S
Global Security".
SECTION 202. Form of Face of Global Security.
10 3/4% SENIOR DISCOUNT NOTES DUE FEBRUARY 15, 2007
No. ___________________
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1267(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
[Legend if Security is a Restricted Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS. THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR
RESALES AND OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.]
[Legend if the Security is a Regulation S Security:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS
THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[Legend if Security is not an Exchange Security:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS
OF, THE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, DATED FEBRUARY 27, 1997,
BETWEEN THE COMPANY AND THE PARTIES REFERRED TO THEREIN.]
Diamond Cable Communications Plc, a public limited company duly
incorporated under the laws of England and Wales with registered number 2965241
(herein called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer upon presentation and surrender the principal sum indicated on
Schedule A hereof on February 15, 2007 and to pay interest thereon from February
15, 2002 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on August 15 and February 15 in
each year, commencing August 15, 2002, at the rate of 10 3/4% per annum, until
the principal hereof is paid or made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
10 3/4% per annum on any overdue principal and premium and on any overdue
installment of interest until paid as specified on the reverse hereof. [If
Original Security, then insert: provided, however, that if (i) the Company has
not filed a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), registering a security substantially identical to this
Security (except that such Security will not contain terms with respect to the
Special Interest payments described below or legends reflecting transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer") (the
"Exchange Registration Statement") (or, if applicable, a registration statement
registering this Security for resale (a "Resale Registration Statement")) by May
28, 1997, or (ii) the Exchange Registration Statement relating to the Exchange
Offer (or, if applicable, a Resale Registration Statement) has not become or
been declared effective by August 26, 1997, or (iii) either the Exchange
Registration Statement or, if applicable, the Resale Registration Statement is
filed and declared effective but shall thereafter cease to be effective (except
as specifically permitted pursuant to the agreement referred to below) without
being succeeded promptly by an additional registration statement filed and
declared effective, in each case (i) through (iii) upon the terms and conditions
set forth in the Exchange and Registration Rights Agreement (the "Exchange and
Registration Rights Agreement"), dated as of February 27, 1997, by and between
the Company and the other parties referred to therein (each such event referred
to in clauses (i) through (iii), a "Registration Default"), then interest will
accrue (in addition to the original issue discount and any stated interest on
the Securities) (the "Step-Up") at a rate of 0.5% per annum, determined daily,
on the Accreted Value of the Securities (or, after February 15, 2002 on the
principal amount at maturity of the Securities), for the period from the
occurrence of the Registration Default until such time (the "Step-Down Date") as
no Registration Default is in effect. Interest
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accruing as a result of the Step-Up is referred to herein as "Special Interest."
Accrued Special Interest, if any, shall be paid semi-annually on August 15 and
February 15 in each year; and the amount of accrued Special Interest shall be
determined on the basis of the number of days during which such Registration
Default is in effect. The Company shall provide the Trustee with written notice
of the date of any Registration Default and the Step-Down Date and, in
connection with each Step-Up, an Officer's Certificate specifying the Accreted
Value as of the date of such Step-Up. Any accrued and unpaid interest (including
Special Interest) on this Security upon the issuance of an Exchange Security (as
defined in the Indenture) in exchange for this Security shall cease to be
payable to the Holder hereof but such accrued and unpaid interest (including
Special Interest) shall be payable on the next Interest Payment Date for such
Exchange Security to the Holder thereof on the related Regular Record Date.]
The principal of this Security shall not accrue interest (other than
Special Interest, if any) until February 15, 2002, except in the case of a
default in payment of principal upon acceleration or redemption and, in such
case, the interest payable pursuant to the preceding paragraph on the overdue
principal as specified on the reverse hereof shall be payable on demand and, if
not so paid on demand, such interest shall itself bear interest at the rate of
12 3/4% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest on unpaid interest shall also be payable on demand.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Security is transferable by delivery.
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39
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
DIAMOND CABLE COMMUNICATIONS PLC
By______________________________
Title:
SECTION 203. Form of Face of Definitive Registered Security.
10 3/4% SENIOR DISCOUNT NOTES DUE FEBRUARY 27, 2007
No. __________ $________
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1267(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
[Legend if Security is a Restricted Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON THAT THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN
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ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS. THIS SECURITY AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS SECURITY
TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY SHALL BE DEEMED, BY THE
ACCEPTANCE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT. EACH
PURCHASER OF THIS SECURITY OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]
[Legend if the Security is a Regulation S Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS
THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[Legend if Security is not an Exchange Security:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS
OF, CERTAIN EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, DATED AS OF FEBRUARY 27,
1997, BETWEEN THE COMPANY AND THE PARTIES REFERRED TO THEREIN.]
Diamond Cable Communications Plc, a public limited company duly
incorporated under the laws of England with registered number 2965241 (herein
called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to __________________, or registered assigns, the principal sum of
_____________________ Dollars on February 15, 2007 and to pay interest thereon
from February 15, 2002 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on August 15 and
February 15 each year, commencing August 15, 2002, at the rate of 10 3/4% per
annum, until the principal hereof is paid or made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of 12 3/4% per annum on any overdue principal and premium and on any
overdue installment of interest until paid as specified on the reverse hereof.
[If Original Security, then insert: provided, however, that if (i) the Company
has not filed a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), registering a security substantially identical
to this Security (except that such Security will not contain terms with respect
to the Special Interest payments described below or legends reflecting transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer") (the
"Exchange Registration Statement") (or, if applicable, a registration statement
registering this
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Security for resale (a "Resale Registration Statement")) by May 28, 1997, or
(ii) the Exchange Registration Statement relating to the Exchange Offer (or, if
applicable, a Resale Registration Statement) has not become or been declared
effective by August 26, 1997, or (iii) either the Exchange Registration
Statement or, if applicable, the Resale Registration Statement is filed and
declared effective but shall thereafter cease to be effective (except as
specifically permitted pursuant to the agreement referred to below) without
being succeeded promptly by an additional registration statement filed and
declared effective, in each case (i) through (iii) upon the terms and conditions
set forth in the Exchange and Registration Rights Agreement (the "Exchange and
Registration Rights Agreement"), dated as of February 27, 1997, by and between
the Company and the other parties referred to therein (each such event referred
to in clauses (i) through (iii), a "Registration Default"), then interest will
accrue (in addition to the original issue discount and any stated interest on
the Securities) (the "Step-Up") at a rate of 0.5% per annum, determined daily,
on the Accreted Value of the Securities (or, after February 15, 2002 on the
principal amount at maturity of the Securities), for the period from the
occurrence of the Registration Default until such time (the "Step-Down Date") as
no Registration Default is in effect. Interest accruing as a result of the
Step-Up is referred to herein as "Special Interest." Accrued Special Interest,
if any, shall be paid semi-annually on August 15 and February 15 in each year;
and the amount of accrued Special Interest shall be determined on the basis of
the number of days during which such Registration Default is in effect. The
Company shall provide the Trustee with written notice of the date of any
Registration Default and the Step-Down Date and, in connection with each
Step-Up, an Officer's Certificate specifying the Accreted Value as of the date
of such Step-Up. Any accrued and unpaid interest (including Special Interest) on
this Security upon the issuance of an Exchange Security (as defined in the
Indenture) in exchange for this Security shall cease to be payable to the Holder
hereof but such accrued and unpaid interest (including Special Interest) shall
be payable on the next Interest Payment Date for such Exchange Security to the
Holder thereof on the related Regular Record Date.]
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the August 1 or February 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
The principal of this Security shall not accrue interest (other than
Special Interest, if any) until February 15, 2002, except in the case of a
default in payment of principal upon acceleration or redemption and, in such
case, the interest payable pursuant to the preceding paragraph on the overdue
principal as specified on the reverse hereof shall be payable on
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demand and, if not so paid on demand, such interest shall itself bear interest
at the rate of 12 3/4% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest on unpaid interest shall also be payable on
demand.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, 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 Company 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.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DIAMOND CABLE COMMUNICATIONS PLC
By:_____________________________________
Title:
SECTION 204. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10 3/4% Senior Discount Notes due February 15, 2007
(herein called the "Securities"), limited in aggregate principal amount at
maturity to U.S.$420,500,000, issued and to be issued under an Indenture, dated
as of February 27, 1997 (herein called the "Indenture"), between the Company and
The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights,
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43
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
All payments made by the Company under or with respect to this Security
will be made free and clear of and without withholding or deduction for or on
account of any present or future taxes, duties, assessments or other
governmental charges of whatever nature unless the withholding or deduction is
then required by law. If any withholding or deduction for or on account of any
present or future taxes, assessments or other governmental charges of the United
Kingdom or any political subdivision or taxing authority thereof or therein
("Taxes") shall at any time be required in respect of any amounts to be paid by
the Company under this Security, the Company will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount (including
Additional Amounts) received by the Holder of this Security after such
withholding or deduction will not be less than the amount the Holder would have
received if such Taxes had not been required to be withheld or deducted;
provided that the foregoing obligation to pay Additional Amounts shall not apply
to (a) any Taxes that would not have been so imposed but for the existence of
any present or former connection between such Holder and the United Kingdom
(other than the mere receipt of such payment or the ownership or holding outside
of the United Kingdom of this Security); (b) any estate, inheritance, gift,
sales, excise, transfer, personal property tax or similar tax, assessment or
governmental charge; or (c) any Taxes payable otherwise than by deduction or
withholding from payments of principal of (or premium, if any, on) or interest
on this Security; nor will Additional Amounts be paid (i) if the payment could
have been made by or through another paying agent without such deduction or
withholding, (ii) if the payment could have been made without such deduction or
withholding had the Holder of this Security or, if different, the beneficiary of
the payment complied with a request of the Company made upon reasonable notice
prior to such payment, or any other Person through whom payment may be made,
addressed or otherwise provided to such Holder or beneficiary to provide
information, documents or other evidence concerning the nationality, residence,
identity or connection with the taxing jurisdiction of such Holder or
beneficiary which is required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, (iii) with respect to any payment of
principal of (or premium, if any, on) or interest on this Security to any Holder
that is a fiduciary or partnership or Person other than the sole beneficial
owner of such payment, to the extent that such payment would be required by the
laws of the U.K. (or any political subdivision or taxing authority thereof or
therein) to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such a partnership or a
beneficial owner who would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the actual Holder of
this Security or (iv) if the payment is in respect of a Definitive Registered
Security issued (or whose Predecessor Security was issued) at the request of a
Holder (including following an Event of Default) and at the time the payment is
made Definitive Registered Securities have not been issued for the entire
principal amount at maturity of the Securities. The foregoing provisions shall
survive any termination or discharge of the Indenture and shall apply mutatis
mutandis to withholding or deduction for or on account of any present or future
taxes, assessments or other governmental charges of any jurisdiction in which
any successor Person to the Company is organized, or any political subdivision
or taxing
-33-
44
authority or agency thereof or therein. The Company will use commercially
reasonable efforts to facilitate administrative actions necessary to assist
Holders to obtain any refund of or credit against withholding taxes for which
Additional Amounts are not paid as a result of the proviso in the second
preceding sentence. Except as otherwise stated, all references in this Security
to principal or accreted value of or interest on this Security shall include any
Additional Amounts payable by the Company pursuant to this paragraph.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after the Cash Interest Date, as
a whole or in part, at the option of the Company; provided that the Company may
not give a notice of redemption (i) more than four times in any year or (ii) in
respect of the redemption of less than $5 million in principal amount at
maturity of the New Senior Notes. Such redemption will be at the following
Redemption Prices (expressed as percentages of the principal amount at
maturity): If redeemed during the 12-month period beginning February 15 of the
years indicated,
Year Redemption
---- ----------
Price
-----
2002................................................................ 105.375%
2003................................................................ 103.583%
2004................................................................ 101.792%
2005 and thereafter................................................. 100.0%
together in the case of any such redemption with accrued and unpaid interest,
including Special Interest, if any, to the Redemption Date [insert in the case
of a Definitive Registered Security "but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture"].
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase
of this Security in part only, a new Security or Securities for the unredeemed
or unpurchased portion hereof will be issued [insert "to the bearer hereof" in
the case of the Global Security, otherwise insert "in the name of the Holder
hereof"] upon the cancellation hereof.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner and
with the effect provided in the Indenture. Until and including the Cash Interest
Date, the Default Amount in respect of this Security as of any particular date
of acceleration shall equal the Accreted Value of this Security. For this
purpose, Accreted Value means the sum of (a) the initial offering price of each
Security and (b) the portion of the excess of the principal amount of each
Security over such initial offering price which shall have been amortized by the
Company through such date, such amount to be so amortized on a daily basis and
compounded semiannually on each August 15 and February 15, at the rate of
10 3/4% per annum from the date of issuance of the Securities through the
date of determination computed on the basis of a 360-day year of twelve 30-day
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months. Such Default Amount shall bear interest at the rate of 12 3/4% per annum
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of acceleration to the date payment has been
made or duly provided for. On and after Cash Interest Date, the Default Amount
in respect of this Security shall equal 100% of the principal amount of the
Security. Such Default Amount shall bear interest at the rate of 12 3/4% per
annum from the Cash Interest Date or the most recent Interest Payment Date to
which interest has been paid or duly provided for. Upon payment of (i) the
Default Amount so declared due and payable and any overdue installment of
interest, (ii) interest on the Default Amount and (iii) as provided on the face
hereof, interest on any overdue installment of interest or, if acceleration
occurs prior to the Cash Interest Date on the interest referred to in the third
preceding sentence (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest on the Securities shall terminate.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, as a whole, but not in part, at the election of
the Company at any time at a Redemption Price equal to 100% of the Accreted
Value thereof (determined at that date of redemption) if such redemption is
prior to the Cash Interest Date, or 100% of the principal amount at maturity if
such redemption is on or after the Cash Interest Date, together in the case of
any such redemption with accrued interest to the Redemption Date, if such
redemption is on or after the Cash Interest Date [insert in the case of the
Definitive Registered Security "but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture"], if (a) the Company is required to issue Definitive
Registered Securities after using all reasonable efforts to avoid having to
issue such Definitive Registered Securities and the Company is or would be so
required in the absence of any applicable tax treaty on the next succeeding
Interest Payment Date to pay Additional Amounts with respect to the Securities
or (b) the Company has become or would become obligated in the absence of any
applicable tax treaty to pay, on the next date on which any amount would be
payable with respect to the Securities, any Additional Amount as a result of any
amendment to, or change in, the laws (or any rules or regulations thereunder) of
the United Kingdom or any political subdivision or taxing authority thereof or
therein (or, in the case of Additional Amounts payable by a successor
Person to the Company, of the jurisdiction in which such successor Person is
organized or any political subdivision or taxing authority thereof or therein),
or any amendment to, or change in any official interpretation or application of
such laws or rules or regulations or any execution of or amendment to any treaty
affecting taxation to which the United Kingdom or such political subdivision or
taxing authority (or such other jurisdiction or political subdivision or taxing
authority) is a party, which amendment or change or execution becomes effective
on or after the date of the Indenture (or, in the case of Additional Amounts
payable by a successor Person to the Company, the date on which such successor
Person became such pursuant to the applicable provisions of the Indenture unless
as of such date the relevant tax authority had publicly announced that such
amendment or change or execution was to occur after such date) and such
obligation cannot be avoided by the use of all commercially reasonable measures
available to the Company; provided, however, that (1) no such notice of
redemption may be given earlier than 90 days prior to the earliest date on which
the Company
-35-
46
would be obligated to pay such Additional Amounts were a payment in respect of
the Securities then due, and (2) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect.
The Indenture provides that, subject to certain conditions, if (i)
certain Excess Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Securities.
In the event of redemption (or purchase pursuant to an Offer to
Purchase) of this Security in part only, a new Security of Securities for the
unredeemed (or unpurchased) portion hereof will be issued in the name of the
Holder hereof upon cancellation hereof.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
Unless the context otherwise requires, the Original Securities (as
defined in the Indenture) and the Exchange Securities (as defined in the
Indenture) shall constitute one series for all purposes under the Indenture,
including without limitation, amendments, waivers, redemptions and Offers to
Purchase.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[In the case of a Definitive Registered Security, insert the following
paragraph: "As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or
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47
his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees."]
[In the case of a Definitive Registered Security, insert the following
paragraph: "In the event of redemption (or purchase pursuant to an Offer to
Purchase) of this Security in part only, a new Security or Securities for the
unredeemed (or unpurchased) portion hereof will be issued in the name of the
Holder hereof upon cancellation hereof."]
The Securities are issuable only without coupons in denominations of
$1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities are exchangeable
for a like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
[In the case of Definitive Registered Security, insert the following
paragraph: "Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary."]
[In the case of the Global Security insert: "The bearer of this
Security may be treated as the owner of it for all purposes."]
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
No director, officer, employee, incorporator or shareholder of the
Company, as such shall have any liability for any obligations of the Company
under the Securities, the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of the Securities
by accepting a Security waives and releases all such liability; provided that
such waiver will not release any person from liability for fraud or criminal
acts. The waiver and release are part of the consideration for issuance of the
Securities.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-37-
48
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Company pursuant to Section 1014 or 1015 of the Indenture,
check the box: / /
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1014 or 1015 of the Indenture, state the amount:
U.S.$________.
Dated: [Your Signature:
_____________________________________
(Sign exactly as name appears
on the other side of this Security)]
[Attach the following Schedule A in the case of the Global Security:]
-38-
49
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Security shall be
$420,500,000. The following decreases/increases in the principal amount at
maturity of this Security have been made:
Decrease in Increase in Total Principal Notation Made
Date of Principal Principal Amount at Maturity by or on
Decrease/ Amount at Amount at Following such Behalf of
Increase Maturity Maturity Decrease/Increase Trustee
-------- -------- -------- ----------------- -------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
---------- ---------- ---------- ---------------- ----------
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SECTION 205. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
The Bank of New York as
Trustee
By ____________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount at maturity of Securities which may be
authenticated and delivered under this Indenture is limited to $420,500,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1014 or 1015.
The Company may issue Exchange Securities from time to time pursuant to
an Exchange Offer or otherwise in authorized denominations in exchange for a
like principal amount at maturity of Original Securities. Upon any such exchange
the Original Securities shall be cancelled in accordance with Section 309 and
shall no longer be deemed Outstanding for any purpose. In no event shall the
aggregate principal amount of Original Securities and Exchange Securities
Outstanding exceed $420,500,000.
The Securities shall be known and designated as the "10 3/4% Senior
Discount Notes due February 15, 2007" of the Company. Their Stated Maturity
shall be February 15, 2007 and they shall bear interest at the rate of 10 3/4%
per annum, from the Cash Interest Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on February 15 and August 15, commencing August 15, 2002
until the principal thereof is paid or made available for payment; provided,
however, with respect to Original Securities, if there has been a Registration
Default, a Step-Up will occur and the Original Securities will from then bear
Special Interest until the Step-Down Date. Accrued Special Interest, if any,
shall be paid in cash in arrears semi-annually on February 15 and August 15 in
each year, and the amount of accrued Special Interest shall be determined on the
basis of the number of days actually elapsed and computed as provided in Section
310.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York,
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51
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose; provided, however, that at the option of the Company
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.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1014 and 1015.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
Unless the context otherwise requires, the Original Securities and the
Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions, Acts
of Holders and Offers to Purchase.
SECTION 302. Denominations.
The Securities shall be issuable only in global bearer or in definitive
registered form without coupons and in denominations of $1,000 principal amount
at maturity and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chief
Executive Officer, its Managing Director or one of its Directors. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication
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52
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. Transfer and Exchange.
(a) Registration, Registration of Transfer and Exchange Generally.
Transfer of a Global Security shall be by delivery.
The Global Security shall be exchanged by the Company (with
authentication by the Trustee) for one or more Definitive Registered Securities,
if the Holder so requests, provided, that such Definitive Registered Securities
and such Global Security after such exchange shall be in authorized
denominations. In addition, if at any time the Company in its sole discretion
determines, the Global Security shall be exchanged (in whole but not in part)
for one or more Definitive Registered Securities. Whenever all of a Global
Security is exchanged for one or more Definitive Registered Securities it shall
be surrendered by the Holder thereof to the Trustee for cancellation. Whenever a
part of a Global Security is exchanged for one or more Definitive Registered
Securities the Global Security shall be surrendered by the Holder thereof to the
Trustee who shall cause an adjustment to be made to Schedule A of such Global
Security such that the principal amount of such Global Security will be reduced
by the portion of such Global Security so exchanged for Definitive Registered
Securities. All Definitive Registered Securities issued in exchange for a Global
Security or any portion thereof shall be registered in such names as the Holder
of the Global Security shall instruct the Trustee. Every Security
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authenticated and delivered in exchange for or in lieu of, a Global Security or
any portion thereof, pursuant to Section 304, 306, 906 or 1108 or in accordance
with any Offer to Purchase pursuant to Section 1014 or 1015 hereof or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security. A Global Security may not be exchanged for another Security other than
as provided in this paragraph.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Definitive Registered Securities and of transfers of Definitive
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Definitive Registered Securities and transfers of
Definitive Registered Securities as herein provided. Such Security Register of
Definitive Registered Securities shall distinguish between Original Securities
and Exchange Securities.
Upon surrender for registration of transfer of any Definitive
Registered Security at an office or agency of the Company designated pursuant to
Section 1002 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Registered Securities of any authorized
denominations and of a like aggregate principal amount and tenor and bearing
such legends reflecting restrictions as may be required by this Indenture.
Subject to Section 305(b), at the option of the Holder, Definitive
Registered Securities may be exchanged for other Definitive Registered
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Definitive Registered Securities to be exchanged
at such office or agency. Whenever any Definitive Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Definitive Registered Securities which the Holder
making the exchange is entitled to receive.
All Definitive Registered Securities issued upon any registration of
transfer or exchange of Definitive Registered Securities shall be the valid
obligations of the Company, evidencing the same debt, and (subject to the
provisions in the Original Securities regarding the payment of Special Interest)
entitled to the same benefits under this Indenture, as the Definitive Registered
Securities surrendered upon such registration of transfer or exchange.
Every Definitive Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security other than to require delivery of
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such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
In the event that the Company delivers to the Trustee a copy of an
Officers' Certificate certifying that a registration statement under the
Securities Act with respect to the Exchange Offer has been declared effective by
the Commission and that the Company has offered Exchange Securities to the
Holders in accordance with the Exchange Offer, the Trustee shall exchange, upon
request of any Holder, such Holder's Securities for Exchange Securities upon the
terms set forth in the Exchange Offer.
Subject to Section 305(b), the Holder of the Global Security may
increase the principal amount at maturity of the Global Security held by it by
surrendering any Definitive Registered Security registered in its name to the
Registrar for cancellation. Upon surrender of such Definitive Registered
Security, the Registrar shall forward such Definitive Registered Security to the
Trustee for cancellation and the Trustee shall make a notation on Schedule A of
the Global Security held by such Holder to increase the principal amount at
maturity of such Global Security by an amount equal to the principal amount at
maturity of the Definitive Registered Security surrendered for cancellation.
No service charge shall be made for any registration of transfer or
exchange of Definitive Registered Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Definitive Registered Securities, other than exchanges pursuant to Section 304,
306, 906 or 1108 or in accordance with any Offer to Purchase pursuant to Section
1014 or 1015 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Definitive Registered Security during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 1104 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Definitive Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Definitive
Registered Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) Restricted Global Security to Regulation S Global
Security. If the Holder of the Restricted Global Security wishes at any
time to transfer such Security in whole or in part to the Holder of the
Regulation S Global Security, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and Clause
(b)(vii) below and subject to the Applicable Procedures. Upon receipt
by the Trustee,
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as Security Registrar, of (A) an order given by the Holders of the
Regulation S Global Security and the Restricted Global Security
directing that the principal amount at maturity represented by the
Regulation S Global Security be increased by a specified amount and
that the principal amount at maturity represented by the Restricted
Global Security be reduced by an equal amount and (B) a Regulation S
Certificate, satisfactory to the Trustee and duly executed by the
Holder of the Restricted Global Security or his attorney in fact duly
authorized in writing, then the Trustee, as Security Registrar but
subject to Clause (b)(vii) below, shall reduce the principal amount at
maturity of the Restricted Global Security and increase the principal
amount at maturity of the Regulation S Global Security by such
specified principal amount at maturity as provided in Section 305(c).
(ii) Regulation S Global Security to Restricted Global
Security. If the Holder of the Regulation S Global Security wishes at
any time to transfer such Security in whole or in part to the Holder of
the Restricted Global Security, such transfer may be effected only in
accordance with this Clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
an order given by the Holders of the Regulation S Global Security and
the Restricted Global Security directing that the principal amount at
maturity represented by the Regulation S Global Security be reduced by
a specified amount and that the principal amount at maturity
represented by the Restricted Global Security be increased by an equal
amount and (B) if such transfer is to occur during the Restricted
Period, a Restricted Securities Certificate, satisfactory to the
Trustee and duly executed by the Holder of the Regulation S Global
Security or his attorney in fact duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal amount at
maturity of the Regulation S Global Security and increase the principal
amount at maturity of the Restricted Global Security by such specified
principal amount as provided in Section 305(c). If transfers under this
Section 305(b)(ii) occur after the Restricted Period, no Restricted
Securities Certificates will be required.
(iii) Restricted Non-Global Security to Restricted Global
Security or Regulation S Global Security. If the Holder of a Definitive
Registered Security that is a Restricted Security wishes at any time to
transfer all or any portion of such Security to the Holder of the
Restricted Global Security or the Regulation S Global Security, such
transfer may be effected only in accordance with the provisions of this
Clause (b)(iii) and Clause (b)(vii) below and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
such Definitive Registered Security as provided in Section 305(a) and
instructions satisfactory to the Trustee directing that the principal
amount at maturity of the Restricted Global Security or Regulation S
Global Security be increased by a specified principal amount at
maturity not greater than the principal amount at maturity of such
Definitive Registered Security and (B) a Restricted Securities
Certificate, if the principal amount at maturity of the Restricted
Global Security is to be increased, or a Regulation S Certificate, if
the principal amount at maturity of the Regulation S Global Security is
to be increased, in either case satisfactory to the Trustee and duly
executed by such Holder or his attorney duly authorized in writing,
then the Trustee, as Security Registrar but subject to Clause
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(b)(vii) below, shall cancel such Definitive Registered Security (and
issue a new Definitive Registered Security in respect of any
untransferred portion thereof) as provided in Section 305(a) and
increase the principal amount of the Restricted Global Security or the
Regulation S Global Security, as the case may be, by the specified
principal amount at maturity as provided in Section 305(c).
(iv) Regulation S Non-Global Security to Restricted
Global Security or Regulation S Global Security. If the Holder of a
Definitive Registered Security that is a Regulation S Security wishes
at any time to transfer all or any portion of such Security to the
Holder of the Restricted Global Security or the Regulation S Global
Security, such transfer may be effected only in accordance with this
Clause (b)(iv) and Clause (b)(vii) below and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
such Definitive Registered Security as provided in Section 305(a) and
instructions satisfactory to the Trustee directing that the principal
amount at maturity of the Restricted Global Security or Regulation S
Global Security be increased by a specified principal amount at
maturity not greater than the principal amount at maturity of such
Definitive Registered Security and (B) if the transfer is to occur
during the Restricted Period and the principal amount at maturity of
the Restricted Global Security is to be increased, a Restricted
Securities Certificate satisfactory to the Trustee and duly executed by
such Holder or his attorney duly authorized in writing, then the
Trustee, as Security Registrar but subject to Clause (b)(vii) below,
shall cancel such Security (and issue a new Definitive Registered
Security in respect of any untransferred portion thereof) as provided
in Section 305(a) and increase the principal amount of the Restricted
Global Security or the Regulation S Global Security, as the case may
be, by the specified principal amount as provided in Section 305(c).
(v) Definitive Registered Security to Definitive
Registered Security. A Definitive Registered Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Definitive Registered Security as provided in Section
305(a), provided that, if the Security to be transferred in whole or in
part is a Restricted Security, or is a Regulation S Security and the
transfer is to occur during the Restricted Period, then the Trustee
shall have received (A) a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by the transferor Holder
or his attorney duly authorized in writing, in which case the
transferee Holder shall take delivery in the form of a Restricted
Security, or (B) a Regulation S Certificate, satisfactory to the
Trustee and duly executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder shall take
delivery in the form of a Regulation S Security (subject in each case
to Section 305(c)).
(vi) Exchanges between Global Security and Definitive
Registered Security. A Global Security (in whole or part) may be
exchanged for one or more Definitive Registered Securities as provided
in Section 305, provided that, if such Global Security is the
Restricted Global Security, or if such Global Security is the
Regulation S Global Security and such exchange is to occur during the
Restricted Period, then such Global Security shall be exchanged for one
or more Restricted
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Securities (subject in each case to Section 305(c)). A Definitive
Registered Security may be transferred to the Holder of a Global
Security only if (A) such transfer is effected in accordance with
Clause (b)(iii) or (iv) above or (B) such Security is a Regulation S
Security and such transfer occurs after the Restricted Period.
The Company shall notify the Trustee promptly of the
expiration of the Restricted Period. Such notification shall be in the form of
Annex D hereto.
(c) Securities Act Legends. Rule 144A Securities and their
Successor Securities shall bear a Restricted Securities Legend, and Initial
Regulation S Securities and their Successor Securities shall bear a Regulation S
Legend, subject to the following:
(i) subject to the following Clauses of this Section
305(c), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof
shall bear the Securities Act Legend borne by such Global Security
while represented thereby;
(ii) subject to the following Clauses of this Section
305(c), a new Definitive Registered Security which is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Securities
Act Legend borne by such other Security, provided that, if such new
Definitive Registered Security is required pursuant to Section
305(b)(v) or (vi) to be issued in the form of a Restricted Security, it
shall bear a Restricted Securities Legend and, if such new Definitive
Registered Security is so required to be issued in the form of a
Regulation S Security, it shall bear a Regulation S Legend;
(iii) SEC Registered Securities shall not bear a
Securities Act Legend;
(iv) after the applicable Rule 144(k) restricted
period, a new Definitive Registered Security which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Definitive Registered Security or any portion thereof which bears such
a legend if the Trustee has received an Unrestricted Securities
Certificate, satisfactory to the Trustee and duly executed by the
Holder of such legended Security or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the
Trustee shall authenticate and deliver such a new Definitive Registered
Security in exchange for or in lieu of such other Definitive Registered
Security as provided in this Article Three,
(iv) a new Definitive Registered Security which does
not bear a Securities Act Legend may be issued in exchange for or in
lieu of a Definitive Registered Security or any portion thereof which
bears such a legend if, in the Company's judgment, placing such a
legend upon such new Security is not necessary to ensure compliance
with the registration requirements of the Securities Act, and the
Trustee, at the direction of the Company, shall authenticate and
deliver such a new Security as provided in this Article Three, and
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(v) notwithstanding the foregoing provisions of this Section
305(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Restricted
Securities Legend in exchange for such Successor Security as provided
in this Article Three.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section , the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid (a) in the case of
the Global Security to its Holder and (b) in the case of a Definitive Registered
Security to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest (including Special Interest) on any Security which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
In the case of a Definitive Registered Security, prior to due
presentment of such Definitive Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat,
to the extent permitted by applicable law, the Person in whose name such
Security is registered as the owner of such Definitive Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. In the case of the Global Security, the Company, the
Trustee and any agent of the Company or the Trustee may treat its global bearer
as the owner for all such purposes.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1014 and 1015 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order; provided,
however, that the Trustee may but shall not be required to destroy cancelled
securities.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
(2) default in the payment of any interest or Additional
Amounts upon any Security when due and payable, and continuance of such
default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the purchase
of Securities (including payment of accreted and unpaid interest)
required
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to be purchased (or paid) by the Company pursuant to an Offer to
Purchase as to which an Offer has been mailed to Holders; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of Debt by the Company or any Significant
Restricted Subsidiary or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any Debt of such type by the Company or any
Significant Restricted Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of (pound
sterling) 5 million, whether such Debt now exists or shall hereafter be
created, which default or defaults shall constitute a failure to pay in
excess of (pound sterling) 5 million of the principal of such Debt when
due and payable after the expiration of any applicable grace period
with respect thereto or shall have resulted in an aggregate of in
excess of (pound sterling) 5 million in principal amount of such Debt
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable; or
(7) a final judgment or final judgments for the payment of
money are entered against the Company or any Significant Restricted
Subsidiary of the Company in an aggregate amount in excess of (pound
sterling) 5 million by a court or courts of competent jurisdiction,
which judgments remain undischarged or unbonded for a period (during
which execution shall not be effectively stayed) of 60 days after the
right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Significant Restricted Subsidiary in an involuntary case or proceeding
under any applicable Insolvency Law or (B) a decree or order adjudging
the Company or any such Significant Restricted Subsidiary a bankrupt or
insolvent under any applicable Insolvency Law, or
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appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Significant Restricted Subsidiary or of any substantial part of the
property of the Company or any such Significant Restricted Subsidiary,
or ordering the winding up or liquidation of the affairs of the Company
or any such Significant Restricted Subsidiary, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Significant
Restricted Subsidiary of a voluntary case or proceeding under any
applicable Insolvency Law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or
any such Significant Restricted Subsidiary to the entry of a decree or
order for relief in respect of the Company or any Significant
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Insolvency Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Significant
Restricted Subsidiary, or the filing by the Company or any such
Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Insolvency Law, or the
consent by the Company or any such Significant Restricted Subsidiary to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Significant
Restricted Subsidiary or of any substantial part of the property of the
Company or any Significant Restricted Subsidiary, or the making by the
Company or any Significant Restricted Subsidiary of an assignment for
the benefit of creditors, or the admission by the Company or any such
Significant Restricted Subsidiary in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action (which shall involve the passing of one or more resolutions of
the Board of Directors or a committee thereof) by the Company or any
such Significant Restricted Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities may declare the Default Amount of all the Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such Default
Amount and any accrued interest shall become immediately due and payable. If an
Event of Default specified in Section 501(8) or (9) occurs, the Default Amount
of and any accrued
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interest on the Securities then Outstanding shall ipso facto become immediately
due and payable without any declaration or other Act on the part of the Trustee
or any Holder.
Until and including the Cash Interest Date, the "Default Amount" in
respect of any particular Security as of any particular date of acceleration
shall equal the Accreted Value of the Security. On and after the Cash Interest
Date, the Default Amount in respect of any particular Security shall equal 100%
of the principal amount of the Security.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an
Offer to Purchase made by the Company) and, to the extent that
payment of such interest is lawful, interest thereon at the
rate provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), or the property of the
Company (or such other obligor) or their creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial
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proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: If applicable, to the Company.
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SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
Subject to Section 603(c), the Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been
made by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, the Trustee, any
Holder or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or in the
case of redemption, on or after the Redemption, on or after the Redemption Date
or in the case of an Offer to Purchase made by the Company and required to be
accepted as to such Security, on the Purchase Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein
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granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 516. No Personal Liability of Directors, Employees and Shareholders.
No director, officer, employee, incorporator or shareholder of the
Company, as such shall have any liability for any obligations of the Company
under the Securities, the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of the Securities
by accepting a Security waives and releases all such liability; provided that
such waiver will not release any person from liability for fraud or criminal
acts. The waiver and release are part of the consideration for issuance of the
Securities.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate security or
indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions
of this Section .
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture,
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 furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
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(c) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities determined as provided in Sections 101, 104 and
512, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series.
SECTION 602. Notice of Defaults.
Within 45 days after a Responsible Officer in the Corporate Trust
office of the Trustee has been notified of the occurrence of any default
hereunder, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, and to the Holder of the Global
Security notice of such default hereunder unless such default shall have been
cured or waived; provided, however, that in the case of any default of the
character specified in Section 501(5), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section , the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation as
shall have been agreed upon in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and any predecessor Trustee and to pay or reimburse the
Trustee and any predecessor Trustee for expenses, disbursements and advances
shall survive the payment of the Securities, resignation or removal of the
Trustee and satisfaction, discharge or other termination of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(8) or Section 501(9), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
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At the request of the Trustee, the Company shall file with the Trustee
promptly at the end of each calendar year (i) a written notice specifying the
amount of original issue discount (including daily rates and accrual periods)
accrued on Outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section , the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section , it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such
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successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
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Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section , the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section , such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section .
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section , without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section , the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section .
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section , and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section , the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
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-----------------------------,
As Trustee
By ,
---------------------------
As Authenticating Agent
By
---------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each February
1, and August 1, commencing August 1, 1997, a list, in such form as the
Trustee may reasonably require, of the names and ad dresses of the
Holders as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto
which report shall be as of May 15 and be provided on or before July 15 of each
year.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall deliver to the Trustee and file with the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be delivered to the Trustee
within 15 days after the same is so required to be filed with the Commission.
SECTION 705. Registration Rights.
The Trustee shall maintain copies of the Registration Rights Agreement
available for inspection by Holders of Securities during normal business hours
at its Corporate Trust Office and for as long as there are Registrable
Securities (as defined in the Registration Rights Agreement) outstanding.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not, in a single transaction or through a series of
related transactions (a) consolidate with or merge into any other Person; (b)
permit any other Person to consolidate with or merge into the Company; (c)
directly or indirectly, transfer, assign, convey, sell, lease or otherwise
dispose of all or substantially all of its properties and asset as an entirety;
or (d) permit any Subsidiary of the Company to enter into any such transaction
or transactions if such transaction or transactions, in the aggregate, would
result in a sale, assignment, transfer, lease or disposal of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis to any other Person or group of affiliated
Persons, unless, in any such transaction:
(1) immediately before and after giving effect to such
transaction and treating any Debt Incurred by and Disqualified Equity
which becomes an obligation of the Company or a Subsidiary of the
Company as a result of such transaction as having been Incurred or
issued as applicable by the Company or such Subsidiary at the time of
such transaction, no Event of Default, and no event that, after notice
or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing;
(2) in the event the Company shall consolidate with or merge
into another Person or shall directly or indirectly transfer, assign,
convey, sell, lease or otherwise dispose of all or substantially all of
its properties and assets as an entirety, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by transfer, assignment, conveyance, sale, lease or other
disposition all or substantially all of the properties and assets of
the Company as an entirety (for purposes of this Article Eight, a
"Successor Company") shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of England and
Wales or of the United States of America, any State thereof or the
District of Columbia and shall expressly assume by an indenture
supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest and Additional Amounts,
if any, on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(3) the Company or the Successor Company will have an
Annualized Consolidated Debt to Cash Flow Ratio for the quarter next
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preceding such transaction for which quarterly financial statements are
available (determined on a pro forma basis as if such transaction had
taken place at the beginning of such quarter) equal to or less than the
Annualized Consolidated Debt to Cash Flow Ratio of the Company without
giving effect to the proposed transaction; provided further, that if
the Annualized Consolidated Debt to Cash Flow Ratio of the Company
immediately preceding such transaction is 7.0:1 or less, then the
Annualized Consolidated Debt to Cash Flow Ratio of the Company or the
Successor Company after giving pro forma effect to such transaction may
be up to 0.5:1 greater than such ratio immediately preceding such
transaction;
(4) if, as a result of any such transaction, property and
assets of the Company or any Subsidiary of the Company would become
subject to a Lien which would not be permitted by Section 1011, the
Company or, if applicable, the Successor Company, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) Debt secured by such
Lien;
(5) such transaction would not result in the loss of a
Material License determined on a pro forma basis after giving effect to
such transaction; and
(6) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or acquisition and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with, and, with respect to such
Officer's Certificate, setting forth the manner of determination of the
ability to Incur Debt or issue Disqualified Equity in accordance with
Clause (3) of this Section (including the calculation of the Annualized
Consolidated Debt to Cash Flow Ratio) of the Company or, if applicable,
of the Successor Company as required pursuant to the foregoing.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
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Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1011 or otherwise; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action pursuant to
this Clause (5) shall not adversely affect the interests of the Holders
in any material respect; or
(6) to modify the restrictions on and procedures for resales
and other transfers of this Security to reflect any change in
applicable law or regulation (or the interpretation thereof) or in
practices relating to the resale or transfer of restricted securities
generally.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest or Additional Amounts on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
Additional Amounts or any premium payable thereon, or change the place
of payment where, or the coin or currency in which, any Security or any
premium or the interest thereon or Additional Amounts is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of an Offer
to Purchase which has been made, on or after the applicable Purchase
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1019, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Section 1014 or 1015, modify the provisions of
this Indenture with respect to such Offer to Purchase in a manner
adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, and in Luxembourg an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
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 Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York, and in Luxembourg) where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, and in Luxembourg for such
purposes. The Company will 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.
The Company hereby appoints the Trustee as Paying Agent under this
Indenture, and the Trustee hereby accepts this appointment.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any default
by the Company (or any other obligor upon the Securities) in the making of any
payment in respect of the Securities, upon the written request of the Trustee,
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forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight and Section 1015, the Company will use all
reasonable best efforts to do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and
statutory); provided, however, that the Company shall not be required to
preserve any such right if the Board of Directors in good faith shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will use all reasonable best efforts to cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
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advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, as determined
by the Board of Directors in good faith, desirable in the conduct of its
business or the business of any Subsidiary and not materially disadvantageous to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep insurance
with insurers believed by the Company to be responsible of such type and in such
amounts as the Company reasonably believes are customary in the United Kingdom
for similar companies; provided, however, that the Company shall be under no
obligation to insure the underground portion of its cable network.
SECTION 1008. Limitation on Consolidated Debt and Disqualified Equity.
The Company shall not, and shall not permit any Restricted Subsidiary
to, Incur any Debt or issue any Disqualified Equity unless, immediately after
giving effect to the Incurrence of such Debt or the issuance of such
Disqualified Equity and the receipt and application of the proceeds thereof, the
Annualized Consolidated Debt to Cash Flow Ratio of the Restricted Group for the
quarter next preceding the Incurrence of such Debt or the issuance of such
Disqualified Equity, as the case may be, for which quarterly financial
statements are available, calculated on a pro forma basis (as if such Debt had
been Incurred or such Disqualified Equity had been issued at the beginning of
such quarter) would be less than 7.0 to 1.
Notwithstanding the foregoing paragraph, the Company may, and may
permit any Restricted Subsidiary to, Incur the following Debt or issue the
following Disqualified Equity:
(i) Debt up to the maximum amount contemplated to be available
under the Senior Bank Facility;
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(ii) Debt of the Company and/or any Restricted Subsidiary
outstanding on the date of the Indenture;
(iii) Debt or Disqualified Equity to the extent that the
proceeds are used to finance working capital, or the construction of,
or the acquisition of, property or assets in each case to be used in a
Cable Business;
(iv) Debt Incurred or Disqualified Equity issued to finance a
Cable Acquisition or to provide working capital for or financing for
the construction of property or assets to be used in the business so
acquired;
(v) Debt consisting of Interest Rate Protection Obligations or
Currency Hedging Agreements;
(vi) performance bonds or surety bonds or similar instruments
provided in the ordinary course of business;
(vii) Debt owed by the Company to any Wholly Owned Restricted
Subsidiary (so long as such Debt is held by a Wholly Owned Restricted
Subsidiary) or Debt owed by or Disqualified Equity issued by a
Restricted Subsidiary to the Company or a Wholly Owned Restricted
Subsidiary of the Company (provided that such Debt or Disqualified
Equity is at all times held by the Company or a Wholly Owned Restricted
Subsidiary); provided, however, that upon either
(a) the transfer or other disposition by such Wholly Owned
Restricted Subsidiary or the Company of any such Debt or
Disqualified Equity to a Person other than the Company or
another Wholly Owned Restricted Subsidiary, or
(b) the issuance, sale, lease, transfer or other disposition of
Equity Securities (including by consolidation or merger) of
such Wholly Owned Restricted Subsidiary to a Person other than
the Company or another such Wholly Owned Restricted
Subsidiary, such Debt shall be deemed to have been incurred or
such Disqualified Equity shall be deemed to have been issued
at the time of such transfer or other disposition;
(viii) Debt incurred or Disqualified Equity issued to renew,
extend, refinance or refund any Debt or Disqualified Equity permitted
in Clauses (i) through (iv) above, or the Securities (in the event that
the Securities are redeemed in part), the Company's 13 1/4% Senior
Discount Notes due September 30, 2004 or the Company's 11 3/4% Senior
Discount Notes due December 15, 2005 in an amount not to exceed the
outstanding principal amount (or, if less, Accreted Value) of the Debt
or the aggregate liquidation preference of the Disqualified Equity so
refinanced plus the amount of any
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premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt or Disqualified Equity refinanced or
the amount of any premium reasonably determined by the Company to be
necessary to accomplish such refinancing by means of a tender offer or
privately negotiated repurchase plus the expenses of the Company
Incurred in connection with such refinancing; provided that
(a) in the case of any refinancing or refunding of Debt which is
pari passu to the Securities, the refinancing or refunding
Debt is made pari passu to the Securities or subordinated to
the Securities, and, in the case of any refinancing or
refunding of Debt which is subordinated to the Securities or
of Disqualified Equity, the refinancing or refunding Debt is
subordinated to the Securities to the same extent as the Debt
being refinanced or refunded or is Disqualified Equity; and
(b) in either case, the refinancing or refunding Debt or
Disqualified Equity by its terms, or by the terms of any
agreement or instrument pursuant to which such Debt or
Disqualified Equity is Incurred or issued, as the case may be,
does not have a Weighted Average Life that is lower than that
of the Debt or Disqualified Equity being refinanced or
refunded; and
(ix) Debt or Disqualified Equity not otherwise permitted
to be Incurred or issued under Clauses (i) through (viii) above, which,
together with any other outstanding Debt Incurred or Disqualified
Equity issued pursuant to this Clause (ix), has an aggregate principal
amount (or liquidation preference) not in excess of (pound)20 million
at any time outstanding.
SECTION 1009. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly, declare or pay any
dividend, or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of any class of its Equity Securities or to
the holders of any class of its Equity Securities (including pursuant to a
merger or consolidation of the Company, but excluding any dividends or
distributions payable solely in its Equity Securities (other than Disqualified
Equity) or in options, warrants or other rights to acquire its Equity Securities
(other than Disqualified Equity), (ii) shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to purchase, redeem or otherwise
acquire or retire for value (a) any Equity Securities of the Company or any
Related Person of the Company or (b) any options, warrants or rights to purchase
or acquire shares of Equity Securities of the Company or any Related Person of
the Company (except options, warrants or rights to purchase or acquire such
Equity Securities held by any officer or director or former officer or director
of the Company or ECE Management International (or any of its predecessors) in
an aggregate amount not exceeding (pound)5 million), (iii) shall not make, or
permit any Restricted Subsidiary of the Company to make any Investment in, or
Incur an obligation to Guarantee any obligation of, any Affiliate or Related
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Person of the Company, other than the Company or a Restricted Subsidiary that is
a Wholly Owned Subsidiary of the Company which is a Wholly Owned Subsidiary
prior to such investment, and (iv) shall not, and shall not permit any
Restricted Subsidiary to, redeem, defease (including, but not limited to, legal
or covenant defeasance), repurchase or otherwise retire or acquire for value
prior to any scheduled maturity, repayment or sinking fund payment, Debt of the
Company which explicitly by its terms is subordinate in right of payment to the
Securities (the transactions described in Clauses (i) through (iv) being
referred to herein as "Restricted Payments"), if:
(1) at the time thereof and after giving effect thereto an
Event of Default, or an event that with notice or lapse of time, or
both, would constitute an Event of Default, shall have occurred and be
continuing, or
(2) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the date of the Indenture
exceeds the sum of
(a) the difference between (x) the cumulative Consolidated
Operating Cash Flow from the first day of the fiscal quarter
in which the issue date of the Securities falls through the
last day of the last full fiscal quarter immediately preceding
such Restricted Payment for which quarterly financial
statements are available, and (y) 200% of cumulative
Consolidated Interest Expense from the first day of the fiscal
quarter in which the issue date of the Securities falls
through the last day of the last full fiscal quarter
immediately preceding such Restricted Payment for which
quarterly or annual financial statements of the Company are
available; and
(b) 100% of the aggregate net cash proceeds after the issue date
of the Securities, from the issuance of Equity Securities
(other than Disqualified Equity) of the Company and options,
warrants or other rights on Equity Securities (other than
Disqualified Equity) of the Company (other than to a
Restricted Subsidiary) after the issue date of the Securities.
The foregoing provision shall not be violated by reason of
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment
would have complied with the foregoing provision;
(ii) any refinancing or refunding of any Debt
otherwise permitted under clause (viii) of Section 1008;
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(iii) investments by the Company or any Restricted
Subsidiary in an amount not to exceed in the aggregate
(pound)10 million in a Person which is engaged in a Cable
Business or a business incidental thereto; and
(iv) investments in Non-Restricted Subsidiaries made
with the proceeds of a substantially concurrent (1) capital
contribution to the Company or (2) issue or sale of Equity
Securities (other than Disqualified Equity) of the Company.
SECTION 1010. Limitations Concerning Distributions by and Transfers to
Restricted Group.
The Company shall not, and shall not permit any Restricted Subsidiary
to, suffer to exist any consensual encumbrance or restriction on the ability of
any Restricted Subsidiary (i) to pay, directly or indirectly, dividends or make
any other distributions in respect of its Equity Securities or pay any Debt or
other obligation owed to any member of the Restricted Group; (ii) to make loans
or advances to any member of the Restricted Group; or (iii) to transfer any of
its property or assets to any member of the Restricted Group.
Notwithstanding the foregoing, the Company may, and may permit any
Subsidiary to, suffer to exist any such encumbrance or restriction on the
ability of any Subsidiary of the Company if and to the extent such encumbrance
or restriction exists on the date of the Indenture or is:
(a) provided for in the Senior Bank Facility
documents;
(b) existed prior to the time any Person became a Subsidiary
of the Company and such restriction or encumbrance was not incurred in
anticipation of such Person becoming a Subsidiary of the Company;
(c) exists by reason of a customary merger or acquisition
agreement for the purchase or acquisition of the stock or assets of the
Company or any of its Restricted Subsidiaries by another Person;
(d) contained in an operating lease for real property and is
effective only upon the occurrence and during the continuance of a
default in the payment of rent;
(e) the result of applicable corporate law or regulation
relating to the payment of dividends or distributions;
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(f) pursuant to an agreement pursuant to which Debt meeting
the requirements of clauses (iii), (iv), (v) or (ix) of the second
paragraph of Section 1008 is incurred provided, however, that the
provisions contained in such agreement relating to such encumbrance or
restriction are no more restrictive than those contained in the terms
of the Senior Bank Facility (it being understood that such restrictions
may apply to Restricted Subsidiaries other than those provided in the
Senior Bank Facility); or
(g) pursuant to an agreement effecting a renewal, extension,
refinancing or refunding of Debt Incurred pursuant to an agreement
referred to in clause (a), (b) or (f) above; provided, however, that
the provisions contained in such agreement relating to such encumbrance
or restriction are no more restrictive than the provisions contained in
the agreement the subject thereof, as determined in good faith by the
Board of Directors and evidenced by a Board Resolution.
SECTION 1011. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, Incur or suffer to exist any Lien upon any of its
property or assets, now owned or hereinafter acquired, to secure any Debt
without making, or causing such Subsidiary to make, effective provision for
securing the Securities (and, if the Company shall so determine, any other Debt
of the Company which is not subordinate to the Securities) (x) equally and
ratably with such Debt as to such property and assets for so long as such Debt
shall be so secured or (y) in the event such Debt is subordinate in right of
payment to the Securities, prior to such Debt as to such property and assets for
so long as such Debt shall be so secured.
The foregoing restrictions will not apply to Liens in respect of Debt
existing at the date of this Indenture or to:
(i) Liens securing only the Securities;
(ii) Liens in favor of the Company or any Wholly Owned
Restricted Subsidiary;
(iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company (and not incurred in anticipation
of such merger or consolidation) which Liens shall not extend to any
other property of the Company or any Restricted Subsidiary;
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(iv) Liens on property existing immediately prior to the time
of acquisition thereof (and not in anticipation of the financing of
such acquisition);
(v) Liens to secure Debt Incurred under the provisions
described in clauses (i), (iii), (iv), (v) or (ix) of the second
paragraph of Section 1008;
(vi) Liens for taxes or assessments or other governmental
charges or levies which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if any, as
shall be required in accordance with generally accepted accounting
principles shall have been made;
(vii) Liens to secure obligations under workmen's compensation
laws or similar legislation, including Liens with respect to judgments
which are not currently dischargeable; and
(viii) Liens to secure Debt Incurred to extend, renew,
refinance or refund (or successive extensions, renewals, refinancings
or refundings), in whole or in part, Debt secured by any Lien referred
to in the foregoing Clauses (i) to (vii) so long as such Lien does not
extend to any other property.
(b) In addition to the foregoing, the Company and its Restricted
Subsidiaries may incur and suffer to exist a Lien to secure any Debt or enter
into a Sale and Leaseback Transaction, without equally and ratably securing the
Securities, if the sum of (i) the amount of Debt secured by a Lien entered into
after the date of the Indenture and otherwise prohibited by the Indenture and
(ii) the Attributable Value of all Sale and Leaseback Transactions entered into
after the date of the Indenture and otherwise prohibited by the Indenture does
not exceed 5% of the Company's Consolidated Tangible Assets.
SECTION 1012. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, enter into any Sale and Leaseback Transaction unless:
(i) the Company or such Restricted Subsidiary would be
entitled to enter into such Sale and Leaseback Transaction pursuant to
the provisions of Section 1011(b) hereof without equally and ratably
securing the Securities and the terms of such transaction have been
approved by the Board of Directors as evidenced by a Board of
Resolution; or
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(ii) all of the conditions set forth in Section 1014 of
this Indenture (including the provisions concerning the application of
Net Available Proceeds) would be satisfied with respect to such Sale
and Leaseback Transaction if all of the consideration received in such
Sale and Leaseback Transaction were treated as Net Available Proceeds.
SECTION 1013. Limitation on Transactions with Affiliates and Related Persons.
(a) Except as permitted by the following paragraph, the Company shall
not, and shall not permit any Restricted Subsidiary of the Company to, enter
into any transaction (including, without limitation, the purchase, sale, lease
or exchange of property, the rendering of any service or the making of any
Investment) or conduct any business, with any Affiliate or Related Person of the
Company, unless such transaction is effected or such business is conducted on
terms that, in the Company's good faith judgment, are at least as favorable to
the Company or such Subsidiary as those that could be obtained in a comparable
arm's length transaction with a Person that is not such an Affiliate or a
Related Person. Any such transaction (or series of related transactions) in
which such Affiliate or Related Person receives in excess of (pound)1.0 million
in any twelve-month period shall be approved as being in the Company's best
interest by a majority of the disinterested directors of the Board of Directors
as evidenced by a Board Resolution. Any such transaction involving in excess of
(pound)5.0 million (or series of related transactions involving in excess of
(pound)5.0 million), or as to which there are no disinterested directors, is
subject to the further requirement that the Company shall obtain an opinion of
an internationally recognized expert with experience in appraising the terms and
conditions of the relevant type of transaction (or series of related
transactions) stating that the transaction or series of related transactions is
fair (from a financial point of view) to the Company or such Restricted
Subsidiary, as the case may be.
(b) The requirements of the preceding paragraph shall not be applicable
to (i) any transaction among the Company and any of its Wholly Owned
Subsidiaries; (ii) any existing management agreement with ECE Management
International, LLC, a limited liability company organized under the laws of the
State of Indiana, or any successor or assign, or any other management agreement
which has substantially similar terms; or (iii) any transaction in which
investment banking or other financial advisory services are provided to the
Company or any Subsidiary by Xxxxxxx, Xxxxx & Co. or any of its Affiliates that
is, in the Company's good faith judgment, on arm's length terms.
SECTION 1014. Limitation on Certain Asset Dispositions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition in one or more related transactions
unless
(i) the Company (or such Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Disposition at
least
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equal to the fair market value of the shares or assets sold or
otherwise disposed of, and
(ii) at least 90% of the consideration for such disposition
consists of cash or Cash Equivalents.
To the extent the Net Available Proceeds of any Asset Disposition are
not required to be applied to repay amounts outstanding under the Senior Bank
Facility or any Debt of a Restricted Subsidiary, or are not so applied, the
Company or such Restricted Subsidiary, as the case may be, may apply such Net
Available Proceeds within 365 days of the receipt thereof, to an investment in
properties and assets that will be used in a Cable Business (or in Equity
Securities of any such Person that will become a Restricted Subsidiary as a
result of such investment to the extent that such Person owns properties and
assets that will be used in a Cable Business) of the Company or any Restricted
Subsidiary ("Replacement Assets"). Notwithstanding the foregoing, the Company
may retain the Net Available Proceeds from any Asset Disposition the Net
Available Proceeds of which do not exceed (pound)1.0 million for any purpose.
Any Net Available Proceeds from any Asset Disposition that are neither used to
repay amounts outstanding under the Senior Bank Facility or any Debt of a
Restricted Subsidiary nor invested in Replacement Assets within such 365-day
period (exclusive of the up to (pound)1.0 million referred to in the preceding
sentence) shall constitute "Excess Proceeds" subject to the provisions described
in the following paragraph.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
(pound)10.0 million, the Company shall make within 30 days of the determination
thereof an Offer to Purchase to all Holders of the Securities with Purchase
Amounts equal to such Excess Proceeds at a Purchase Price in cash equal to 100%
of the Accreted Value thereof on any Purchase Date prior to the Cash Interest
Date or 100% of the outstanding principal amount at maturity thereof plus
accrued and unpaid interest, if any, to any Purchase Date on or after the Cash
Interest Date, as applicable. To the extent that the aggregate principal amount
at maturity or if applicable, the Accreted Value of Securities tendered pursuant
to such Offer to Purchase is less than the Excess Proceeds, the Company may use
such deficiency for any purpose. If the aggregate principal amount at maturity
or the Accreted Value, as applicable, of Securities validly tendered and not
withdrawn by holders thereof exceeds the amount of Securities which can be
purchased with the Excess Proceeds, Securities to be purchased will be selected
on a pro rata basis.
The Company shall not be entitled to any credit against its obligations
under this Section 1014 for the principal amount of any Securities acquired by
the Company otherwise than pursuant to the Offer to Purchase pursuant to this
Section 1014.
(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1014, the Company shall deliver to the Trustee
an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of
the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made, including, if amounts are invested in property or assets
related to a Cable Business, the actual assets acquired and a statement as to
the necessity
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of such assets for the maintenance of such business and (iii) the compliance of
such allocation with the provisions of paragraph (a).
The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust as provided in Section 1003) money sufficient
to pay the purchase price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The paying agent (or the Company,
if so acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
(x) in the case of Definitive Registered Securities, promptly authenticate and
mail or deliver to Holders of such Definitive Registered Securities a new
Definitive Registered Security equal in principal amount to any unpurchased
portion of the Security surrendered and (y) in the case of the Global Security,
return the Global Security indicating in Schedule A thereof the reduction in
principal amount. Any Security not accepted for payment shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Offer on or as soon as practicable after the
Purchase Date.
(d) Notwithstanding the foregoing, the Company and the Restricted
Subsidiaries will be permitted to consummate an Asset Disposition without
complying with the foregoing provisions of this Section 1014 to the extent (i)
at least 90% of the consideration for such Asset Disposition constitutes
Replacement Assets (or Equity Securities of any such Person that will become a
Restricted Subsidiary as a result of such transaction to the extent that such
Person owns properties and assets that will be used in a Cable Business) and
(ii) such Asset Disposition is for fair market value; provided that any
consideration not constituting Replacement Assets or Equity Securities as
described in Clause (i) received by the Company or any Restricted Subsidiaries
in connection with any Asset Disposition permitted to be consummated under this
paragraph shall constitute Net Available Proceeds subject to the foregoing
provisions of this Section 1014.
(e) For purposes of this Section 1014, the fair market value of shares
or assets disposed of in an Asset Disposition shall be as determined in good
faith by (x) a designated officer of the Company and evidenced by an Officer's
Certificate if such consideration is less than (pound)10 million and (y) the
Board of Directors and evidenced by a Board Resolution if such consideration is
greater than or equal to (pound)10 million.
(f) Notwithstanding the foregoing, this Section 1014 shall not apply to
any Asset Disposition which constitutes a transfer, conveyance, sale, lease or
other disposition of all or substantially all of the Company's properties or
assets within the meaning of Section 801 hereof.
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SECTION 1015. Change of Control.
(a) Upon the occurrence of a Change in Control, each Holder of a
Security shall have the right to have such Security repurchased by the Company
on the terms and conditions precedent set forth in this Section 1015 and this
Indenture. The Company shall, within 60 days following the date of the
consummation of a transaction resulting in a Change of Control, commence an
Offer with respect to an Offer to Purchase all Outstanding Securities at a
Purchase Price, on or prior to the Cash Interest Date, equal to 101% of their
Accreted Value to the Purchase Date and, thereafter, 101% of their principal
amount at maturity plus accrued interest to the Purchase Date (provided,
however, that in the case of Definitive Registered Securities installments of
interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307). Each Holder
shall be entitled to tender all or any portion of the Securities owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount at maturity.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall (x) in the case of Definitive Registered Securities, promptly
authenticate and mail or deliver to Holders a new Definitive Registered Security
or Securities equal in principal amount to any unpurchased portion of the
Security surrendered as requested by the Holder and (y) in the case of the
Global Security, return the Global Security indicating in Schedule A thereof the
unpurchased portion of the Security surrendered. Any Security not accepted for
payment shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Offer on or as
soon as practicable after the Purchase Date.
(c) A "Change of Control" shall be deemed to have occurred in the event
that, after the date of this Indenture, either (A) any Person or any Persons
(other than a Permitted Holder) acting together which would constitute a "group"
(a "Group") for purposes of Section 13(d) of the Exchange Act, or any successor
provision thereto, together with any Affiliates or Related Persons thereof,
shall beneficially own (as defined in Rule 13d-3 of the Exchange Act or any
successor provision thereto) at least 45% of the aggregate voting power of all
classes of Equity Securities of the Company entitled to vote generally in the
election of directors of the Company; or (B) any Person or Group (other than a
Permitted Holder), together with any Affiliates or Related Persons thereof,
shall succeed in having a sufficient number of its or their nominees elected to
the Board of Directors of the Company such that such nominees, when
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added to any existing director remaining on the Board of Directors of the
Company after such election who is an Affiliate or Related Person of such Group,
shall constitute a majority of the Board of Directors of the Company or (C) any
event affecting the Company described in Section 501(8) or (9) occurs.
(d) The Company will, not less than 10 days after the date on which the
Company first becomes aware of the consummation of a transaction resulting in a
Change of Control, cause notice of such Change of Control to be mailed to
holders of the New Senior Notes.
SECTION 1016. Additional Amounts.
All payments made by the Company under or with respect to the
Securities shall be made free and clear of and without withholding or deduction
for or on account of any present or future tax, duty, assessment or other
governmental charge of whatever nature unless the withholding or deduction is
then required by law. If any withholding or deduction for or on account of any
present or future taxes, assessments or other governmental charges of the United
Kingdom or any political subdivision or taxing authority thereof or therein
("Taxes") shall at any time be required in respect of any amounts to be paid by
the Company under the Securities, the Company will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been required to be withheld or deducted; provided that the foregoing
obligation to pay Additional Amounts shall not apply to (a) any Taxes that would
not have been so imposed but for the existence of any present or former
connection between such Holder and the United Kingdom (other than the mere
receipt of such payment or the ownership or holding outside of the United
Kingdom of such Security); (b) any estate, inheritance, gift, sales, excise,
transfer, personal property tax or similar tax, assessment or governmental
charge; or (c) any Taxes payable otherwise than by deduction or withholding from
payments of principal of (or premium, if any, on) or interest on such Security;
nor will Additional Amounts be paid (i) if the payment could have been made by
or through another paying agent without such deduction or withholding, (ii) if
the payment could have been made without such deduction or withholding had the
holder of the Security (whether in global bearer or definitive registered form)
or, if different, the beneficiary of the payment complied with a request of the
Company made upon reasonable notice prior to such payment, or any other Person
through whom payment may be made, addressed or otherwise provided to such Holder
or beneficiary to provide information, documents or other evidence concerning
the nationality, residence, identity or connection with the taxing jurisdiction
of such holder or beneficiary which is required or imposed by a statute, treaty,
regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of such tax, (iii) with respect to
any payment of principal of (or premium if any, on) or interest on such Security
to any holder who is a fiduciary or partnership or Person other than the sole
beneficial owner of such payment, to the extent such payment would be required
by the laws of the U.K. (or any political subdivision or taxing authority
thereof or therein) to be included in the income for tax purposes of a
beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had it been the
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holder of such a Security, or (iv) if the payment is in respect of a Definitive
Registered Security issued (or whose Predecessor Security was issued) at the
request of a Holder (including following an Event of Default) and at the time
the payment is made Registered Securities have not been issued in exchange for
the entire principal amount at maturity of the Securities. The foregoing
provisions shall survive any termination or discharge of this Indenture. The
provisions of this Section 1016 shall apply mutatis mutandis to any withholding
or deduction for or on account of any present or future taxes, assessments or
other governmental charges of whatever nature of any jurisdiction in which any
successor Person to the Company is organized, or any political subdivision or
taxing authority or agency thereof or therein. The Company will use commercially
reasonable efforts to facilitate administrative actions necessary to assist
Holders to obtain any refund of or credit against withholding taxes for which
Additional Amounts are not paid as a result of the proviso in the second
preceding sentence. Except as otherwise stated, all references in this Indenture
(other than in Article Twelve) to principal or Accreted Value of, or interest on
the Securities shall include any Additional Amounts payable by the Company
pursuant to this Section 1016.
If the Company is, in respect of any payments, compelled to withhold or
deduct any amount for or on account of Taxes, the Company shall give notice
thereof to each of the Trustee and the Paying Agents. The Company shall, prior
to the due date for the payment thereof, pay any such Taxes, together with any
penalties or interest applicable thereto, and within 15 days after such payment
shall deliver to the Trustee and each of the Paying Agents evidence of such
payment and of the remittance thereof to the relevant taxing or other authority.
The Company shall indemnify the Trustee and each of the Paying Agents for any
loss, liability or expense incurred without gross negligence, bad faith or
willful misconduct on such person's part, arising out of or in connection with
actions taken or omitted by any of them in reliance on this paragraph or
information provided by the Company pursuant to this paragraph or the failure of
the Trustee or any Paying Agent for any reason (other than its own gross
negligence or willful misconduct) to receive on a timely basis the
above-described notice or any information or documentation requested by it or
otherwise required by applicable law or regulations to be obtained, furnished or
filed with it in respect of the Taxes.
SECTION 1017. Provision of Financial Information.
In addition to and without limitation on the Company's obligations
pursuant to Section 704, whether or not the Company is required to be subject to
Section 13(a) or 15(d) of the Exchange Act, or any successor provision thereto,
the Company shall file with the Commission and provide to the Trustee the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto if the Company were so required, such documents
to be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so required. The Company shall also in
any event (a) within 15 days of each Required Filing Date (i) transmit by mail
to all Holders, as their names and addresses have been provided to the Trustee
or appear in the Security Register and, (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company would
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have been required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act or any successor provisions thereto if the Company
were required to be subject to such Sections and (b) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any Holder.
SECTION 1018. Statement by Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Section 801 or Sections 1004 to 1017, inclusive,
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware of the occurrence of
an Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default, and the action which the Company
proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default has come to their attention and, if such a default has come to their
attention, specifying the nature and period of the existence thereof.
SECTION 1019. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1017, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Company
may not omit to comply with the terms of such Offer as to such Holder.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, in
accordance with the provisions appearing in the form of Security hereinbefore
set forth, at the Redemption Prices specified in such form of Security together
with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, pro rata; provided that redemption of portions of the
principal amount of Securities are made in denominations in integral multiples
of $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register or provided to the Trustee by such Holder.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that,
unless the Company defaults in making such payment on the Redemption
Date, interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any applicable accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued interest) such Securities shall not bear interest.
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Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with any applicable accrued interest to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. Upon
surrender of a Global Security if redeemed in part, the Paying Agent shall
forward the Global Security to the Trustee who shall make a notation on Schedule
A thereof to reduce the principal amount at maturity of the Global Security by
an amount equal to the redeemed portion of the Global Security, provided that
the Global Security shall be in an authorized denomination.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1202 or Section 1203 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section , the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied
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(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section , payments in respect
of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Twelve. Subject to compliance with this Article Twelve, the Company may exercise
its option under this Section 1202 notwithstanding the prior exercise of its
option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section , (i) the Company shall be released from its
obligations under Sections 1005 through 1017, inclusive, and Clauses (3) and (4)
of Section 801, (ii) the occurrence of an event specified in Sections 501(3),
501(4) (with respect to Clauses (1), (3) or (4) of Section 801), 501(5) (with
respect to any of Sections 1005 through 1017, inclusive), 501(6) and 501(7)
shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Clause, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an
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amount, or (C) a combination thereof, sufficient, in the opinion of an
internationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, the principal of
(premium, if any) and each instalment of interest on the Securities on
the Stated Maturity of such principal or instalment of interest in
accordance with the terms of this Indenture and of such Securities. For
this purpose, "U.S. Government Obligations" means securities that are
(x) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the United States Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee (i) an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by,
the United States Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable United
States Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize gain or loss for United
States Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred and (ii) an opinion of counsel to the effect that,
under the law in effect at the time of such deposit, payments made from
the defeasance trust would not require the payment of Additional
Amounts if the provisions of Section 1016 above were applicable to such
payments.
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(3) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee (i) an Opinion of Counsel (which
may be based upon an Internal Revenue Service ruling) to the effect
that the Holders of the Outstanding Securities will not recognize gain
or loss for United States Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to United
States Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and covenant
defeasance had not occurred and (ii) an opinion of counsel to the
effect that, under the law in effect at the time of such deposit,
payments made from the defeasance trust would not require the payment
of Additional Amounts if the provisions of Section 1016 above were
applicable to such payments.
(4) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any securities of the Company.
(5) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
501(8) and (9) are concerned, at any time during the period ending on
the 121st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(6) Such defeasance or covenant defeasance shall not result in
a material breach of, or constitute a material default under, any other
agreement or instrument evidencing Debt Incurred by the Company or a
Restricted Subsidiary to which the Company is a party or by which it is
bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with.
(8) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such defeasance or covenant defeasance
shall not result in the trust arising from such deposit to be subject
to regulation as an investment company under the United States
Investment Company Act of 1940, as amended, or such trust shall be
qualified under such act.
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SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
--------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
DIAMOND CABLE COMMUNICATIONS PLC
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director:
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
THE BANK OF NEW YORK,
As Trustee
------------------------------------
Name:
Title:
Attest:
------------------------------
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ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 305(b)(i) and (iii)
of the Indenture)
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10 3/4% Senior Discount Notes due February 15, 2007 of Diamond
Cable Communications Plc (the "Securities")
Reference is made to the Indenture, dated as of February 27,
1997 (the "Indenture"), from Diamond Cable Communications Plc (the "Company") to
The Bank of New York, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal
amount at maturity of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies or has certified that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule 904 or Rule 144 under the Securities Act and
with all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies or has certified
as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
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(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States or for the account or benefit of a U.S.
Person;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after February 27, 1999 and
is being effected in accordance with the applicable amount,
manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 27, 2000 and
the Owner is not, and during the preceding three months has
not been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
A-2
112
Dated: ----------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
--------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
A-3
113
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 305(b)(ii),
(iii), (iv) and (v) of the Indenture)
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10 3/4% Senior Discount Notes due February 15, 2007 of Diamond
Cable Communications Plc (the "Securities")
Reference is made to the Indenture, dated as of February 27,
1997 (the "Indenture"), from Diamond Cable Communications Plc (the "Company") to
The Bank of New York, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount at maturity of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In connection with such transfer, the Owner hereby
certifies or has certified that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule 144A or Rule 144 under the Securities Act and
all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies or has certified
that:
B-1
114
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to
a person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in connection
with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after February 27, 1999
and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 27, 2000
and the Owner is not, and during the preceding three months
has not been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ------------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
---------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
B-2
115
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 305(c))
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10 3/4% Senior Discount Notes due February 15, 2007 of Diamond
Cable Communications Plc (the "Securities")
Reference is made to the Indenture, dated as of February 27,
1997 (the "Indenture"), from Diamond Cable Communications Plc (the "Company") to
The Bank of New York, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount at maturity of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to Section
305(c) of the Indenture. In connection with such exchange, the Owner hereby
certifies or has certified that the exchange is occurring after February 27,
2000 and the Owner is not, and during the preceding three months has not been,
an affiliate of the Company. The Owner also acknowledges or has acknowledged
that any future transfers of the Specified Securities must comply with all
applicable securities laws of the states of the United States and other
jurisdictions.
C-1
116
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: ------------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this
certificate.)
By:
---------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
C-2
117
ANNEX D
DIAMOND CABLE COMMUNICATIONS PLC
_______, 1996
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of New York,
As Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 10 3/4% Senior Discount Notes due February 15, 2007
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of February
27, 1997 (the "Indenture") from Diamond Cable Communications Plc, as Issuer, to
The Bank of New York, as Trustee. Capitalized terms used and not defined herein
shall have the meanings given them in the Indenture.
This letter relates to U.S. $________ principal amount of
Securities represented by the Regulation S Global Security, held by the Trustee
pursuant to Section 201 of the Indenture. We hereby certify that the offering of
the Securities closed on February 27, 1997 and therefore, the restricted period
(as defined in Regulation S) with respect to the offer and sale of the
Securities will terminate on __________, 1997.
DIAMOND CABLE COMMUNICATIONS PLC
By:______________________
Name:
Title:
cc: Euroclear
CEDEL
