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EXHIBIT 4.03
ADELPHIA COMMUNICATIONS CORPORATION
Up to $700,000,000
$100,000,000 7 1/2% Senior Notes Due 2004
$300,000,000 7 3/4% Senior Notes due 2009
INDENTURE
Dated as of January 13, 1999
BANK OF MONTREAL TRUST COMPANY, Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)-----------------------------------------------------------------------------------7.10
(a)(2---------------------------------------------------------------------------------7.10
(a)(3)-----------------------------------------------------------------------------N.A.
(a)(4)-----------------------------------------------------------------------------N.A.
(b)-----------------------------------------------------------------------------------7.08;7.10;11.02
(b)(1)--------------------------------------------------------------------------------7.10
(b)(9)--------------------------------------------------------------------------------7.10
(c)------------------------------------------------------------------------------- N.A.
311(a)--------------------------------------------------------------------------------------7.11
(b)-----------------------------------------------------------------------------------7.11
(c)--------------------------------------------------------------------------------N.A.
312(a)--------------------------------------------------------------------------------------2.05
(b)----------------------------------------------------------------------------------11.03
(c)----------------------------------------------------------------------------------11.03
313(a)--------------------------------------------------------------------------------------7.06
(b)(1)--------------------------------------------------------------------------------7.06
(b)(2)--------------------------------------------------------------------------------7.06
(c)-----------------------------------------------------------------------------------7.06, 11.02
(d)-----------------------------------------------------------------------------------7.06
314(a)--------------------------------------------------------------------------------------4.02;11.02
(b)--------------------------------------------------------------------------------N.A.
(c)(1)-------------------------------------------------------------------------------11.04;11.05
(c)(2)-------------------------------------------------------------------------------11.04;11.05
(c)(3)-----------------------------------------------------------------------------N.A.
(d)--------------------------------------------------------------------------------N.A.
(e)----------------------------------------------------------------------------------11.05
(f)--------------------------------------------------------------------------------N.A.
315(a)--------------------------------------------------------------------------------------7.01;7.02
(b)-----------------------------------------------------------------------------------7.05;11.02
(c)-----------------------------------------------------------------------------------7.01
(d)-----------------------------------------------------------------------------------6.05;7.01;7.02
(e)-----------------------------------------------------------------------------------6.11
316(a) (last sentence)---------------------------------------------------------------------11.06
(a)(1)(A)-----------------------------------------------------------------------------6.05
(a)(1)(B)-----------------------------------------------------------------------------6.04
(a)(2)--------------------------------------------------------------------------------8.02
(b)-----------------------------------------------------------------------------------6.07
317(a)(1)-----------------------------------------------------------------------------------6.08
(a)(2)--------------------------------------------------------------------------------6.09
(b)-----------------------------------------------------------------------------------2.04
318(a)-------------------------------------------------------------------------------------11.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.....................................................................................1
Section 1.02. Other Definitions..............................................................................10
Section 1.03. Incorporation by Reference of Trust Indenture..................................................11
Section 1.04. Rules of Construction..........................................................................11
Section 1.05. Acts of Holders................................................................................12
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating................................................................................12
Section 2.02. Execution and Authentication...................................................................14
Section 2.03. Registrar and Paying Agent.....................................................................14
Section 2.04. Paying Agent to Hold Money in Trust............................................................15
Section 2.05. Holder Lists...................................................................................15
Section 2.06. Transfer and Exchange..........................................................................15
Section 2.07. Replacement Notes..............................................................................20
Section 2.08. Outstanding Notes..............................................................................21
Section 2.09. Treasury Notes.................................................................................21
Section 2.10. Temporary Notes................................................................................21
Section 2.11. Cancellation...................................................................................21
Section 2.12. Defaulted Interest.............................................................................22
ARTICLE 3
CHANGE OF CONTROL OFFER
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes...............................................................................24
Section 4.02. SEC Reports....................................................................................24
Section 4.03. Waiver of Stay, Extension or Usury Laws........................................................24
Section 4.04. Limitation on Transactions with Affiliates.....................................................25
Section 4.05. Limitation on Indebtedness.....................................................................25
Section 4.06. Limitation on Restricted Payments..............................................................25
Section 4.07. Reports to Holders.............................................................................26
Section 4.08. Notice of Defaults Or Events of Default........................................................26
Section 4.09. Compliance Certificates........................................................................26
Section 4.10. Covenant to Secure Notes Equally...............................................................26
Section 4.11. Limitation on Investment in Affiliates and Unrestricted Subsidiaries...........................27
Section 4.12. Limitation on Sale of Assets...................................................................27
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Mergers and Consolidations.....................................................................27
Section 5.02. Successor Person Substituted...................................................................28
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..............................................................................28
Section 6.02. Acceleration...................................................................................30
Section 6.03. Other Remedies.................................................................................30
Section 6.04. Waiver of Past Defaults and Events of Default..................................................31
Section 6.05. Control by Majority............................................................................31
Section 6.06. Limitation on Suits............................................................................31
Section 6.07. Rights of Holders to Receive Payment...........................................................32
Section 6.08. Collection Suit by Trustee.....................................................................32
Section 6.09. Trustee May File Proofs of Claim...............................................................32
Section 6.10. Priorities.....................................................................................33
Section 6.11. Undertaking for Costs..........................................................................33
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..............................................................................33
Section 7.02. Rights of Trustee..............................................................................34
Section 7.03. Individual Rights of Trustee...................................................................35
Section 7.04. Trustee's Disclaimer...........................................................................35
Section 7.05. Notice of Defaults.............................................................................35
Section 7.06. Reports by Trustee to Holders..................................................................35
Section 7.07. Compensation and Indemnity.....................................................................36
Section 7.08. Replacement of Trustee.........................................................................36
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.......................................37
Section 7.10. Eligibility; Disqualification..................................................................37
Section 7.11. Preferential Collection of Claims Against Company..............................................38
Section 7.12. Paying Agents..................................................................................38
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.....................................................................38
Section 8.02. With Consent of Holders........................................................................39
Section 8.03. Compliance with Trust Indenture Act............................................................40
Section 8.04. Revocation and Effect of Consents..............................................................40
Section 8.05. Notation on or Exchange of Notes...............................................................40
Section 8.06. Trustee to Sign Amendments, etc................................................................41
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture........................................................41
Section 9.02. Funds Deposited for Payment of Notes...........................................................42
Section 9.03. Moneys Held by Paying Agent....................................................................42
Section 9.04. Moneys Held by Trustee.........................................................................42
Section 9.05. Reinstatement..................................................................................43
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.01. Applicability of Article; Company Option to Effect Defeasance..................................43
Section 10.02. Defeasance and Discharge.......................................................................43
Section 10.03. Covenant Defeasance............................................................................44
Section 10.04. Conditions to Defeasance or Covenant Defeasance................................................44
Section 10.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.......................................................................45
Section 10.06. Reinstatement..................................................................................46
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls...................................................................46
Section 11.02. Notices........................................................................................46
Section 11.03. Communications by Holders with Other Holders...................................................47
Section 11.04. Certificate and Opinion as to Conditions.......................................................47
Section 11.05. Statements Required in Certificate and Opinion.................................................48
Section 11.06. When Treasury Notes Disregarded................................................................48
Section 11.07. Rules by Trustee and Agents....................................................................48
Section 11.08. Business Days; Legal Holidays..................................................................49
Section 11.09. Governing Law..................................................................................49
Section 11.10. No Adverse Interpretation of Other Agreements..................................................49
Section 11.11. No Recourse against Others.....................................................................49
Section 11.12. Successors.....................................................................................49
Section 11.13. Multiple Counterparts..........................................................................50
Section 11.14. Table of Contents, Headings, etc...............................................................50
Section 11.15. Separability...................................................................................50
EXHIBITS
Exhibit A FORM OF NOTES
Exhibit B FORM OF CERTIFICATES OF EXCHANGE OR TRANSFER
THIS INDENTURE, dated as of January 13, 1999, is by and
between ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), and BANK OF MONTREAL TRUST COMPANY, a trust company organized under
the laws of the State of New York (the "Trustee").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions
"144A Global Note" means a permanent global note that contains
the paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 2 to the form of the Note attached hereto as Exhibit A, and that is
deposited with and registered in the name of the Depository.
"2004 Notes" means the 7 1/2% Senior Notes Due 2004 that are
issued under this Indenture, as amended or supplemented from time to time
pursuant to this Indenture.
"2009 Notes" means the 7 3/4% Senior Notes Due 2009 that are
issued under this Indenture, as amended or supplemented from time to time
pursuant to this Indenture.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.05 hereof.
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, the Company, (ii) which beneficially owns or holds 10% or
more of any class of the voting Capital Stock of the Company, or (iii) of which
10% or more of the voting Capital Stock is beneficially owned or held by the
Company, a Restricted Subsidiary or an Unrestricted Subsidiary of the Company.
Without a limitation, an Affiliate also includes any director or executive
officer of the Company. As used herein, "Affiliate" shall not include a
Restricted Subsidiary.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands. See Section 2.03 hereof.
"Agent Members" means members of, or participants in, the
Depository.
"Aggregate Excess Restricted Investments" means for any fiscal
quarter the aggregate of Excess Restricted Investments with respect to the
Restricted Investments in all of the Unrestricted Subsidiaries and Affiliates of
the Company.
"Allowable Securities" means (i) cash equivalents, (ii) common
or preferred Capital Stock in a Person which (x) has Investment Grade Senior
Debt or (y) whose ratio of Indebtedness plus Preferred Stock to Annualized Pro
Forma EBITDA is less than 7.75:1, or (iii) debt securities issued by a Person
which (x) has Investment Grade Senior Debt or (y) whose Leverage Ratio is less
than 7.75:1, provided that the securities in (ii)(y) and (iii)(y) above shall
only be deemed to be Allowable Securities if the principal business of the
Person is owning and operating cable television systems.
"Annualized Pro Forma EBITDA" means, with respect to any
Person, (i) such Person's Pro Forma EBITDA for the latest fiscal quarter
multiplied by four, minus (ii) in the case of the Company only, the Company's
Aggregate Excess Restricted Investments for such fiscal quarter.
"Asset Sale" means the sale, transfer or other disposition
(other than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions of (a) any Capital Stock of or
other equity interest in any Restricted Subsidiary, (b) all or substantially all
of the assets of the Company or of any Restricted Subsidiary or (c) all or
substantially all of the assets of a Company System or part thereof serving at
least 5,000 basic subscribers, a division, line of business or comparable
business segment of the Company or any Restricted Subsidiary.
"Applicable Procedures" means the procedures of the
Depository.
"Board of Directors" means the Board of Directors of the
Company or any committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of corporate stock, partnership
interests or any other participation, right or other interest in the nature of
any equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capital Stock Sale Proceeds" means the aggregate net sale
proceeds (including the fair market value of property, other than cash, as
determined by an independent appraisal firm) received by the Company from the
issue or sale (other than to a Subsidiary) by the Company of any class of its
Capital Stock on or after January 1, 1993 (including Capital Stock of the
Company issued after January 1, 1993 upon conversion of or in exchange for other
securities of the Company).
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means such time as (i) (a) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
other than the Rigas Family and its Affiliates, becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total
voting power required to elect or designate for election a majority of the
Company's Board of Directors and attaching to the then outstanding voting
Capital Stock of the Company and (b) the Rigas Family, together with its
Affiliates, is not at such time the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 35% of the total voting power required to
elect or designate for election a majority of the Company's Board of Directors
and attaching to the then outstanding voting Capital Stock of the Company, or
(ii) during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Company's Board of Directors (together
with any new directors whose election by the Company's Board of Directors or
whose nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination
for election was previously so approved or approved by the Rigas Family and its
Affiliates at a time when they had the right or ability by voting right,
contract or otherwise to elect or designate for election a majority of the
Company's Board of Directors) cease for any reason to constitute a majority of
the directors then in office.
"Change of Control Triggering Event" means the occurrence of
both a Change of Control and a Rating Decline.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other obligor on the
Notes.
"Company Request" means any written request signed in the name
of the Company by the Chairman, the President or a Vice President of the Company
and attested to by a Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Company.
"Consolidated Fixed Charge Ratio" means, for any Person, for
any period, the ratio of (i) Annualized Pro Forma EBITDA to (ii) Consolidated
Interest Expense for such period multiplied by four.
"Consolidated Interest Expense" means, for any Person, for any
period, the amount of interest in respect of Indebtedness (including
amortization of original issue discount, amortization of debt issuance costs,
and non-cash interest payments on any Indebtedness and the interest portion of
any deferred payment obligation and after taking into account the effect of
elections made under any Interest Rate Agreement, however denominated, with
respect to such Indebtedness), the amount of Redeemable Dividends and the
interest component of rentals in respect of any Capitalized Lease Obligation
paid, accrued or scheduled to be paid or accrued by such Person during such
period, determined on a consolidated basis in accordance with GAAP. For purposes
of this definition, interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP consistently applied.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Cumulative Credit" means the sum of (i) Capital Stock Sale
Proceeds plus (ii) cumulative EBITDA of the Company from and after January 1,
1993 to the end of the fiscal quarter immediately preceding the date of a
proposed Restricted Payment, or, if such cumulative EBITDA for such period is
negative, minus the amount by which such cumulative EBITDA is less than zero.
"Cumulative Interest Expense" means the aggregate amount of
Consolidated Interest Expense paid, accrued or scheduled to be paid or accrued
by the Company from January 1, 1993 to the end of the fiscal quarter immediately
preceding a proposed Restricted Payment, determined on a consolidated basis in
accordance with GAAP.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A, that do not include the information called
for by footnotes 1 and 2 thereof.
"Depository" means The Depository Trust Company and its
successors.
"EBITDA" means, for any Person, for any period, an amount
equal to (A) the sum of (i) consolidated net income for such period (exclusive
of any gain or loss realized in such period upon an Asset Sale), plus (ii) the
provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing consolidated net income and
any provision for taxes utilized in computing net loss under clause (i) hereof,
plus (iii) Consolidated Interest Expense for such period, plus (iv) depreciation
for such period on a consolidated basis, plus (v) amortization of intangibles
for such period on a consolidated basis, plus (vi) any other non-cash items
reducing consolidated net income for such period, minus (B) all non-cash items
increasing consolidated net income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP consistently applied, except
that with respect to the Company, each of the foregoing items shall be
determined on a consolidated basis with respect to the Company and its
Restricted Subsidiaries only.
"Excess Restricted Investment" means, with respect to any
particular Unrestricted Subsidiary or Affiliate of the Company for a fiscal
quarter, the lesser of the amounts described in the following clauses (i) and
(ii), or if such amounts are equal, such amount:
(i) the aggregate amount of any Restricted
Investments (other than the Initial
Investment) made by the Company or any
Restricted Subsidiary with respect to such
Unrestricted Subsidiary or Affiliate and
during the twelve-month period ending on the
last day of such fiscal quarter;
(ii) cash income received during such quarter by
the Company with respect to its Restricted
Investments in such Unrestricted Subsidiary
or Affiliate multiplied by four;
and provided that cash income from a particular Restricted Investment shall be
included only (x) if cash income has been received by the Company with respect
to such Restricted Investment during each of the previous two fiscal quarters,
or (y) if the cash income derived from such Restricted Investment is
attributable to Allowable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the Exchange Offer as defined in the
Registration Rights Agreement.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"GAAP" means generally accepted accounting principles as in
effect in the United States from time to time.
"Global Notes" means, individually and collectively, the 144A
Global Note and the Regulation S Global Note, substantially in the form of
Exhibit A hereto.
"Holder" or "Noteholder" means the Person in whose name a
Note is registered on the Registrar's books.
"Indebtedness" is defined to mean (without duplication), with
respect to any Person, any indebtedness, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute subscriber
advance payments and deposits, accounts payable or trade payables, and other
accrued liabilities arising in the ordinary course of business) if and to the
extent any of the foregoing indebtedness would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and shall also
include, to the extent not otherwise included, (i) any Capitalized Lease
Obligations, (ii) obligations secured by a lien to which the property or assets
owned or held by such Person is subject, whether or not the obligation or
obligations secured thereby shall have been assumed, (iii) guaranties of items
of other Persons which would be included within this definition for such other
Persons (whether or not such items would appear upon the balance sheet of the
guarantor), (iv) in the case of the Company, Preferred Stock of its Restricted
Subsidiaries and (v) obligations of any such Person under any Interest Rate
Agreement applicable to any of the foregoing. Notwithstanding the foregoing,
Indebtedness shall not include any interest or accrued interest until due and
payable.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Investment" means the Restricted Investment in a
Person made by the Company or a Restricted Subsidiary that first results in such
Person becoming an Unrestricted Subsidiary or Affiliate of the Company, except
that in the case of Olympus, "Initial Investment" shall mean any Restricted
Investment made in Olympus since February 22, 1994, but only to the extent that
such Restricted Investment when aggregated with the other Restricted Investments
made in Olympus since such date does not exceed $25,000,000.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investment Grade Senior Debt" means, with respect to any
Person, Indebtedness of such Person which has been rated with an investment
grade rating by Xxxxx'x or Standard & Poor's Corporation.
"Leverage Ratio" is defined as the ratio of (i) the
outstanding Indebtedness of a Person and its Subsidiaries (or in the case of the
Company, its Restricted Subsidiaries) divided by (ii) the Annualized Pro Forma
EBITDA of such Person.
"Lien" means with respect to any property or assets of the
Company (it being understood that for the purposes of this definition property
or assets of the Company do not include property or assets of any Subsidiary of
the Company) 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 limitation, any Capitalized Lease Obligation, conditional
sale, or other title retention agreement having substantially the same economic
effect as any of the foregoing) except for (i) liens for taxes, assessments or
governmental charges or levies on property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings; (ii) liens imposed by law such as
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations not more
than sixty (60) days past due or are being contested in good faith and by
appropriate proceedings; (iii) other liens incidental to the conduct of its
business or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or credit
and which do not in the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in the operation of its
business; (iv) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character; or (v) liens arising
upon entry of a confession of judgment in Pennsylvania courts in connection with
borrowings not in excess of $1,000,000 in the aggregate.
"Notes" means, individually and collectively, the 2004 Notes
and 2009 Notes that are issued under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Chief Financial Officer, the Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers. See Sections 11.04 and 11.05 hereof.
"Olympus" means Olympus Communications, L.P., a Delaware
limited partnership.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee. See Sections 11.04 and 11.05 hereof.
"Permitted Investments" means, for any Person, Restricted
Investments made on or after February 22, 1994 consisting of (i) advances for
less than one year issued in the ordinary course of business for working capital
purposes or for the purchase of property, plant and equipment in an amount not
to exceed $5,000,000 in the aggregate outstanding, (ii) with respect to a
Restricted Investment in Olympus, $25,000,000 plus the aggregate amount of cash
income received by the Company from Olympus, minus the aggregate amount of all
Restricted Investments made since February 22, 1994 with respect to Olympus,
(iii) $20,000,000 plus the cash proceeds from the sale or redemption of, or
income from, any Restricted Investments made on or after January 1, 1993, minus
the aggregate amount of all Restricted Investments (excluding Restricted
Investments made with respect to Olympus) since January 1, 1993, (iv) non-cash
Restricted Investments made with the non-cash proceeds from the sale or
redemption of, or income from, any Restricted Investments, or (v) an amount
which, at the time of such Restricted Investment, does not exceed the amount of
Restricted Payments that could then be made by the Company and its Restricted
Subsidiaries under Section 4.06; provided further that no Restricted Investments
may be made under (ii), (iii), (iv) or (v) unless pro forma for such Restricted
Investment the Company could incur $1 of debt under the first paragraph of
Section 4.05.
"Permitted Refinancing Indebtedness" means any renewals,
extensions, substitutions, refinancings or replacements of any Indebtedness,
including any successive extensions, renewals, substitutions, refinancings or
replacements so long as (i) the aggregate amount of Indebtedness represented
thereby is not increased by such renewal, extension, substitution, refinancing
or replacement, (ii) in the case of Indebtedness of the Company, the average
life and the date such Indebtedness is scheduled to mature is not shortened and
(iii) in the case of Indebtedness of the Company, the new Indebtedness shall not
be senior in right of payment to the Indebtedness that is being extended,
renewed, substituted, refinanced or replaced.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Pro Forma EBITDA" means for any Person, for any period, the
EBITDA of such Person, as determined on a consolidated basis in accordance with
GAAP consistently applied after giving effect to the following: (i) if, during
or after such period, such Person or any of its Subsidiaries shall have made any
Asset Sale, Pro Forma EBITDA of such Person and its Subsidiaries for such period
shall be reduced by an amount equal to the Pro Forma EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset Sale for
the period or increased by an amount equal to the Pro Forma EBITDA (if negative)
directly attributable thereto for such period and (ii) if, during or after such
period, such Person or any of its Subsidiaries completes an acquisition of any
Person or business which immediately after such acquisition is a Subsidiary of
such Person or whose assets are held directly by such Person or a Subsidiary of
such Person, Pro Forma EBITDA shall be computed so as to give pro forma effect
to the acquisition of such Person or business; and provided further that with
respect to the Company, all of the foregoing references to "Subsidiary" or
"Subsidiaries" shall be deemed to refer only to a "Restricted Subsidiary" or
"Restricted Subsidiaries" of the Company.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Date" means the date which is 90 days prior to the
earlier of (i) a Change of Control and (ii) public notice of the occurrence of a
Change of Control or of the intention of the Company to effect a Change of
Control.
"Rating Decline" means the occurrence of the following on, or
within 90 days after, the date of public notice of the occurrence of a Change of
Control or of the intention by the Company to effect a Change of Control (which
period shall be extended so long as the rating of the Notes is under publicly
announced consideration for possible downgrade by Xxxxx'x or Standard & Poor's
Corporation): (a) in the event the Notes are rated by either Xxxxx'x or Standard
& Poor's on the Rating Date as Investment Grade Senior Debt, the rating of the
Notes by both Xxxxx'x and Standard & Poor's shall be below Investment Grade
Senior Debt; or (b) in the event the Notes are rated below Investment Grade
Senior Debt by both Xxxxx'x and Standard & Poor's on the Rating Date, the rating
of the Notes by either Xxxxx'x or Standard & Poor's shall be decreased by one or
more gradations (including gradations within rating categories as well as
between rating categories).
"Redeemable Dividend" means, for any dividend with regard to
Redeemable Stock, the quotient of the dividend divided by the difference between
one and the maximum statutory federal income tax rate (expressed as a decimal
number between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means with respect to any Person, any
Capital Stock that by its terms or otherwise is required to be redeemed or is
redeemable at the option of the holder at any time prior to the maturity of the
Notes.
"Registration Rights Agreement" means the Note Registration
Rights Agreement, dated as of January 13, 1999, by and between the Company and
Xxxxxxx Xxxxx Xxxxxx Inc., Credit Suisse First Boston Corporation, Xxxxxxx,
Sachs & Co., Xxxxxx Brothers Inc., and NationsBanc Xxxxxxxxxx Securities LLC.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit A,
and that is deposited with or on behalf of the Depositary and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Restricted Investment" means any advance, loan, account
receivable (other than an account receivable arising in the ordinary course of
business), or other extension of credit (excluding, however, accrued and unpaid
interest in respect of any advance, loan or other extension of credit) or any
capital contribution to (by means of transfers of property to others, payments
for property or services for the account or use of others, or otherwise), any
purchase or ownership of any stocks, bonds, notes, debentures or other
securities (including, without limitation, any interests in any partnership or
joint venture) of, or any bank accounts with or guarantee of any Indebtedness or
other obligations of, any Unrestricted Subsidiary or Affiliate of the Company.
"Restricted Payment" means (i) any dividend or distribution
(whether made in cash, property or securities), on or with respect to any shares
of Capital Stock of the Company or Capital Stock of any Subsidiary which is
consolidated with the Company in accordance with GAAP consistently applied,
except for any dividend or distribution which is made solely to the Company or
another Subsidiary or dividends or distributions payable solely in shares of
Common Stock of the Company, or (ii) any redemption, repurchase, retirement or
other direct or indirect acquisition of (a) Indebtedness of the Company which is
subordinate in right of payment to the Notes, except by exchange for or out of
the proceeds of the substantially concurrent issuance of Permitted Refinancing
Indebtedness or from proceeds of a sale of Capital Stock by the Company, or (b)
shares of Capital Stock of the Company or any warrants, rights or options to
directly or indirectly purchase or acquire any such Capital Stock of the Company
or any securities exchangeable for or convertible into any such shares, other
than options issued or shares purchased or granted under the Company's Stock
Option Plan of 1986 or the Company's Restricted Stock Bonus Plan, from any
employee of the Company or any of its Subsidiaries who, together with any Person
that, directly or indirectly, controls (other than by virtue of being directly
or indirectly the employer of such employee), is controlled by or is under
common control with such employee, owns less than 1% of the outstanding Capital
Stock of the Company, except for the purchase, redemption, retirement or other
acquisition of any shares of the Company's Capital Stock by exchange for, or out
of the proceeds of the substantially concurrent sale of, other shares of its
Capital Stock other than any capital stock which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder thereof, in whole or in part, on or prior to January 15, 2004
(with respect to the 2004 Notes) or January 15, 2009 (with respect to the 2009
Notes).
"Restricted Subsidiary" means (a) any Subsidiary of the
Company, whether existing on or after the date of this Indenture, unless such
Subsidiary is an Unrestricted Subsidiary or shall have been classified as an
Unrestricted Subsidiary by a resolution adopted by the Board of Directors of the
Company and (b) an Unrestricted Subsidiary which is reclassified as a Restricted
Subsidiary by a resolution adopted by the Board of Directors of the Company,
provided that on and after the date of such reclassification such Unrestricted
Subsidiary shall not incur Indebtedness other than that permitted to be incurred
by a Restricted Subsidiary under the provisions of this Indenture.
"Rigas Family" means collectively Xxxx X. Xxxxx and members of
his immediate family, any of their respective spouses, estates, lineal
descendants, heirs, executors, personal representatives, administrators, trusts
for any of their benefit and charitable foundations to which shares of the
Company's Capital Stock beneficially owned by any of the foregoing have been
transferred.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Notes" and "Series B Notes" mean the Notes as
described and in the forms contemplated herein, and as authenticated and issued
under this Indenture.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such Person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise if in accordance
with GAAP such entity is consolidated with the first-named Person for financial
statement purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code SS
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) 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 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 a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary, (b) any Subsidiary of the Company which is classified
after the date of this Indenture as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company and (c) any subsidiary which as
of the date of the Indenture has been declared an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of the Company (such Unrestricted
Subsidiaries being Hyperion Telecommunications, Inc., Global Cablevision, Inc.,
Orchard Park Cablevision, Inc. and Global Acquisition Partners, L.P. on the date
hereof); provided that a Subsidiary organized or acquired after the date of this
Indenture may be so classified as an Unrestricted Subsidiary only if immediately
after the date of such classification, any investment by the Company and its
Restricted Subsidiaries in any such Subsidiary made at the time of the
organization or acquisition of such Subsidiary would be a Restricted Investment
permissible under this Indenture. The Trustee shall be given prompt notice by
the Company of each resolution adopted by its Board of Directors under this
provision, together with a copy of each such resolution adopted.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections indicated as
follows:
Term Defined in Section
"Act".................................................................1.05
"Bankruptcy Law"......................................................6.01
"Business Day"........................................................11.08
"Certificated Notes"..................................................2.01
"Change of Control Offer".............................................3.00
"Change of Control Purchase Price"....................................3.00
"Covenant Defeasance".................................................10.03
"Custodian"...........................................................6.01
"Defeasance"..........................................................10.02
"DTC".................................................................2.03
"Event of Default"....................................................6.01
"Legal Holiday".......................................................11.08
"Paying Agent"........................................................2.03
"Proposed Change of Control Response Date"............................3.00
"Reclassification"....................................................4.12
"Registrar"...........................................................2.03
Section 1.03 Incorporation by Reference of Trust Indenture
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture noteholder" means a Noteholder.
"indenture to be qualified" means this
Indenture.
"indenture trustee" or "institutional
trustee" means the Trustee.
"obligor" means the Company or any other
obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04 Rules of ConstructionSection
Unless the context otherwise requires:
(1) a term has the meaning assigned to it
herein, whether defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) words used herein implying any gender shall apply
to every gender.
Section 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an 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 an agent therefor shall be sufficient for any purpose of
this Indenture and (subject to Section 7.01 hereof) 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 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 ownership of Notes shall be proved by the register of
Notes maintained by the Registrar pursuant to Section 2.03 hereof.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note 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 Note.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A attached hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Notes shall be issued initially in the form
of the Global Notes, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Depository at its New York office, and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided.
The Global Notes shall represent such of the outstanding Notes
as shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of the Global Notes to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian (as hereinafter defined), at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply
only to the Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(b), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Note Custodian.
Agent Members shall have no rights either under this Indenture
with respect to any Global Notes held on their behalf by the Depository or by
the Note Custodian or under such Global Notes, and the Depository may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Notes for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in the Global Notes.
(c) Definitive Notes. Notes issued in certificated form shall
be substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1 and 2 thereto). Except as provided in
Section 2.06, owners of beneficial interests in the Global Notes will not be
entitled to receive physical delivery of certificated Securities.
(d) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel Bank.
Section 2.02 Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid. A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate Series A Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Notes. The Trustee
shall, upon a written order of the Company signed by an Officer, authenticate
Series B Notes for original issue up to the aggregate principal amount of Series
A Notes exchanged in the Exchange Offer or otherwise exchanged for Series A
Notes pursuant to the terms of the Registration Rights Agreement. The aggregate
principal amount of Notes outstanding at any time may not exceed such amounts
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA SS 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA SS 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through
the Depository, in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in the Global Notes may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the Global Notes in accordance
with the transfer restrictions set forth in the legend in subsection (g) of this
Section 2.06.
(b) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive
Notes; or
(y) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes
of other authorized denominations, the
Registrar shall register the transfer or
make the exchange as requested if its
requirements for such transactions are met;
provided, however, that the Definitive Notes
presented or surrendered for register of
transfer or exchange:
(i) shall be duly endorsed or
accompanied by a written instruction
of transfer in form satisfactory to
the Registrar duly executed by such
Holder or by his attorney, duly
authorized in writing; and
(ii) in the case of a Definitive Note
that is a Transfer Restricted
Security, such request shall be
accompanied by the following
additional information and
documents, as applicable:
(A) if such Transfer Restricted
Security is being delivered
to the Registrar by a
Holder for registration in
the name of such Holder,
without transfer, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto);
(B) if such Transfer Restricted
Security is being
transferred to a QIB in
accordance with Rule 144A
under the Securities Act or
pursuant to an exemption
from registration in
accordance with Rule 144
under the Securities Act or
pursuant to an effective
registration statement
under the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto);
(C) if such Transfer Restricted
Security is being
transferred to a non-U.S.
Person in an offshore
transaction inaccordance
with Rule 903 or Rule 904
under the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto); or
(D) if such Transfer Restricted
Security is being
transferred in reliance on
another exemption from the
registration requirements
of the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto) and an
Opinion of Counsel from
such Holder or the
transferee reasonably
acceptable to the Company
and to the Registrar to the
effect that such transfer
is in compliance with the
Securities Act.
(c) Intentionally omitted.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), the Global Notes may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(e) Intentionally omitted.
(f) Authentication of Definitive Notes in Absence of
Depository. If at any time:
(i) the Depository for the Notes
notifies the Company that the
Depository is unwilling or unable to
continue as Depository for the
Global Notes and a successor
Depository for the Global Notes is
not appointed by the Company within
90 days after delivery of such
notice; or
(ii) the Company at its sole discretion,
notifies the Trustee in writing that
it elects to cause the issuance of
Definitive Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii), each Note
certificate evidencing the Global
Notes and Definitive Notes (and all
Notes issued in exchange therefor or
substitution thereof) shall bear
legends in substantially the
following form:
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER AGREES THAT (1) IT WILL
NOT PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT
IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND
THE LAST DATE ON WHICH THE COMPANY,
OR ANY AFFILIATE OF THE COMPANY, WAS
THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 000X
XXXXX XXX XXX, (X) XXXXXX XXX XXXXXX
XXXXXX TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT
AND (2) WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO
THE RESALE RESTRICTION TERMINATION
DATE. IF THE PROPOSED TRANSFEREE IS
AN ACCREDITED INVESTOR, THE HOLDER,
PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE
AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE
ACT, AS USED HEREIN. THE TERMS
"OFFSHORE TRANSACTION," "UNITED
STATES" and "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE ACT.
(ii) Upon any sale or transfer of a
Transfer Restricted Security
(including any Transfer Restricted
Security represented by the Global
Notes) pursuant to Rule 144 under
the Securities Act, Regulation S
under the Securities Act or pursuant
to an effective registration
statement under the Securities Act:
(A) in the case of any
Transfer Restricted
Security that is a
Definitive Note, the
Registrar shall permit the
Holder thereof to exchange
such Transfer Restricted
Security for a Definitive
Note that does not bear the
legend set forth in (i)
above and rescind any
restriction on the transfer
of such Transfer Restricted
Security upon receipt of a
certification from the
transferring holder
substantially in the form
of Exhibit C hereto, and;
(B) in the case of any Transfer
Restricted Security
represented by the Global
Notes, such Transfer
Restricted Security shall
not be required to bear the
legend set forth in (i)
above, but shall continue
to be subject to the
provisions of Section
2.06(a) and (b) hereof.
(iii) Upon any sale or transfer of
a Transfer Restricted Security
(including any Transfer Restricted
Security represented by the Global
Notes) in reliance on any exemption
from the registration requirements
of the Securities Act (other than
exemptions pursuant to Rule 144A or
Rule 144 under the Securities Act or
Regulation S under the Securities
Act) in which the Holder or the
transferee provides an Opinion of
Counsel to the Company and the
Registrar in form and substance
reasonably acceptable to the Company
and the Registrar (which Opinion of
Counsel shall also state that the
transfer restrictions contained in
the legend are no longer
applicable):
(A) in the case of any Transfer
Restricted Security that is
a Definitive Note, the
Registrar shall permit the
Holder thereof to exchange
such Transfer Restricted
Security for a Definitive
Note that does not bear the
legend set forth in (i)
above and rescind any
restriction on the transfer
of such Transfer Restricted
Security; and
(B) in the case of any Transfer
Restricted Security
represented by the Global
Notes, such Transfer
Restricted Security shall
not be required to bear the
legend set forth in (i)
above, but shall continue
to be subject to the
provisions of Section
2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing,
upon consummation of the Exchange
Offer in accordance with the
Registration Rights Agreement, the
Company shall issue and, upon
receipt of an authentication order
in accordance with Section 2.02
hereof, the Trustee shall
authenticate Series B Notes in
exchange for Series A Notes accepted
for exchange in the Exchange Offer,
which Series B Notes shall not bear
the legend set forth in (i) above,
and the Registrar shall rescind any
restriction on the transfer of such
Series B Notes, in each case unless
the Holder of such Series A Notes is
either (A) a broker-dealer, (B) a
Person participating in the
distribution of the Series A Notes
or (C) a Person who is an affiliate
(as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of the Global Notes. At
such time as all beneficial interests in the Global Notes have been exchanged
for Definitive Notes, redeemed, repurchased or canceled, the Global Notes shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in the Global Notes is exchanged for Definitive Notes, redeemed,
repurchased or canceled, the principal amount of Notes represented by the Global
Notes shall be reduced accordingly and an endorsement shall be made on the
Global Notes, by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers
and exchanges, the Company shall
execute and the Trustee shall
authenticate Definitive Notes and
the Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a
Holder for any registration of
transfer or exchange, but the
Company may require payment of a sum
sufficient to cover any transfer tax
or similar governmental charge
payable in connection therewith
(other than any such transfer taxes
or similar governmental charge
payable upon exchange or transfer
pursuant to Sections 2.10 and 8.05
hereto).
(iii) All Definitive Notes and the Global
Notes issued upon any registration
of transfer or exchange of
Definitive Notes or the Global Notes
shall be the valid obligations of
the Company, evidencing the same
debt, and entitled to the same
benefits under this Indenture, as
the Definitive Notes or the Global
Notes surrendered upon such
registration of transfer or
exchange.
(iv) Prior to due presentment for the
registration of a transfer of any
Note, the Trustee, any Agent and the
Company may deem and treat the
Person in whose name any Note is
registered as the absolute owner of
such Note for the purpose of
receiving payment of principal of
and interest on such Notes, and
neither the Trustee, any Agent nor
the Company shall be affected by
notice to the contrary.
(v) The Trustee shall authenticate
Definitive Notes and the Global
Notes in accordance with the
provisions of Section 2.02 hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate a replacement if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for any expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows are so owned shall
be so disregarded.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by an Officer. Temporary Notes shall be substantially in
the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
cancelled Notes (subject to the record retention requirement of the Exchange Act
in accordance with its standard disposition policies in effect from time to
time). Certification of the destruction of all cancelled Notes shall be
delivered to the Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
CHANGE OF CONTROL OFFER
Within 50 days of (i) the proposed occurrence of a Change of
Control or (ii) the occurrence of a Change of Control Triggering Event, the
Company shall notify the Trustee in writing of such proposed occurrence or
occurrence, as the case may be, and shall make an offer to purchase (the "Change
of Control Offer") the Notes at a purchase price equal to 100% of the principal
amount thereof plus any accrued and unpaid interest thereon to the Change of
Control Payment Date (as hereinafter defined) (the "Change of Control Purchase
Price") in accordance with the procedures set forth in this covenant.
Within 50 days of (i) the proposed occurrence of a Change of
Control or (ii) the occurrence of a Change of Control Triggering Event, the
Company also shall (a) cause a notice of the Change of Control Offer to be sent
at least once to the Dow Xxxxx News Service or similar business news service in
the United States and (b) send by first-class mail, postage prepaid, to the
Trustee and to each holder of the Notes, at his address appearing in the
register of the Notes maintained by the Registrar, a notice stating:
(1) that the Change of Control Offer is being made
pursuant to this covenant and that all Notes tendered will be
accepted for payment, provided that a Change of Control
Triggering Event has occurred and otherwise subject to the
terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the
purchase date (which shall be a Business Day no earlier than
50 days from the date such notice is mailed and no later than
15 days after the date of the corresponding Change of Control
Triggering Event) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Notes accepted
for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment
Date;
(5) that holders accepting the offer to have their
Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes to the Paying Agent at the
address specified in the notice prior to the close of business
on the Business Day preceding the Change of Control Payment
Date;
(6) that holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the holder,
the principal amount of the Notes delivered for purchase, and
a statement that such holder is withdrawing his election to
have such Notes purchased;
(7) that holders whose Notes are being purchased only
in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, provided
that each Note purchased and each such new Note issued shall
be in an original principal amount in denominations of $1,000
and integral multiples thereof; and
(8) any other procedures that a holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance.
Notwithstanding any other provision of this Article 3, in the
case of a notice of a Change of Control Offer that is being furnished by the
Company with respect to a proposed Change of Control that has not yet actually
occurred, the Company may specify in such notice that holders of the Notes shall
be required to notify the Company, by a date not earlier than the date (the
"Proposed Change of Control Response Date") which is 30 days from the date of
such notice, as to whether such holders will tender their Notes for payment
pursuant to the Change of Control Offer and to notify the Company of the
principal amount of such Notes to be so tendered (with the failure of any holder
to so notify the Company within such 30-day period to be deemed an election of
such holder not to accept such Change of Control Offer). In such event, the
Company shall have the option, to be exercised by a subsequent written notice to
be sent, no later than 15 days after the Proposed Change of Control Response
Date, to the same Persons to whom the original notice of the Change of Control
Offer was sent, to cancel or otherwise effect the termination of the proposed
Change of Control and to rescind the related Change of Control Offer, in which
case the then outstanding Change of Control Offer shall be deemed to be null and
void and of no further effect.
On the Change of Control Payment Date, the Company shall (a)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (b) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so tendered and (c) deliver or
cause to be delivered to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof tendered to the
Company. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Trustee shall promptly authenticate and mail to such holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be issued in an original principal amount
in denominations of $1,000 and integral multiples thereof.
There shall be no purchase of any Notes pursuant to this
covenant if there has occurred (prior to, on or after, as the case may be, the
tender of such Notes pursuant to the Change of Control Offer, by the holders of
such Notes) and is continuing an Event of Default. The Paying Agent will
promptly return to the respective holders thereof any Notes (a) the tender of
which has been withdrawn in compliance with this Indenture or (b) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Change of Control Purchase Price with respect to such Notes).
In the event that the Company is required to make a Change of
Control Offer, the Company will comply with all applicable tender offer rules
including Rule 14e-1 under the Exchange Act, to the extent applicable.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay the principal of and all interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Company will pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law) and on overdue
interest, to the extent lawful, at the rate borne by the Notes.
Section 4.02 SEC Reports.
The Company shall file with the Trustee, within 15 days after
it files with the SEC, copies of the annual reports and of the other
information, documents and reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe), if any, which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. The Company shall also comply with
the other provisions of TIA S 314(a).
Section 4.03 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of and/or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any transaction with any Affiliate upon terms which
would be any less favorable than those obtainable by the Company or a Restricted
Subsidiary in a comparable arm's-length transaction with a Person which is not
an Affiliate. The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any transaction (or series of related transactions)
involving in the aggregate $1,000,000 or more with any Affiliate except for (i)
the making of any Restricted Payment, (ii) any transaction or series of
transactions between the Company and one or more of its Restricted Subsidiaries
or between two or more of its Restricted Subsidiaries (provided that no more
than 5% of the equity interest in any of its Restricted Subsidiaries is owned by
an Affiliate), and (iii) the payment of compensation (including, without
limitation, amounts paid pursuant to employee benefit plans) for the personal
services of officers, directors and employees of the Company or any of its
Restricted Subsidiaries, so long as the Board of Directors of the Company in
good faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation or fees to be
fair consideration therefor; and provided further that for any Asset Sale, or a
sale, transfer or other disposition (other than to the Company or any of its
Restricted Subsidiaries) of an interest in a Restricted Investment, involving an
amount greater than $25,000,000, such Asset Sale or transfer of interest in a
Restricted Investment is for fair value as determined by an opinion of a
nationally recognized investment banking firm filed with the Trustee.
Notwithstanding the foregoing, this provision shall not prohibit any such
transaction which is determined by the independent members of the Board of
Directors of the Company, in their reasonable, good faith judgment (as evidenced
by a Board Resolution filed with the Trustee) to be (a) in the best interests of
the Company or such Restricted Subsidiary, and (b) upon terms which would be
obtainable by the Company or a Restricted Subsidiary in a comparable
arm's-length transaction with a Person which is not an Affiliate.
Section 4.05 Limitation on Indebtedness
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, issue, assume or become
liable for, contingently or otherwise (collectively an "incurrence"), any
Indebtedness unless, after giving effect to such incurrence on a pro forma
basis, Indebtedness of the Company and its Restricted Subsidiaries, on a
consolidated basis, shall not be more than the product of the Annualized Pro
Forma EBITDA for the latest fiscal quarter preceding such incurrence for which
financial statements are available, multiplied by 8.75.
Notwithstanding the above, this provision will not limit the
incurrence of Indebtedness which is incurred by the Company or its Restricted
Subsidiaries for working capital purposes or capital expenditures with respect
to plant, property and equipment of the Company and its Restricted Subsidiaries
in an aggregate amount not to exceed $50,000,000. Further, this provision will
not limit Permitted Refinancing Indebtedness, subject to the provisions of
Section 4.06.
Section 4.06 Limitation on Restricted Payments
So long as any of the Notes remain outstanding, the Company
shall not make, and shall not permit any Restricted Subsidiary to make, any
Restricted Payment if (a) at the time of such proposed Restricted Payment, a
Default or Event of Default shall have occurred and be continuing or shall occur
as a consequence of such Restricted Payment, or (b) immediately after giving
effect to any such Restricted Payment, the aggregate of all Restricted Payments
which shall have been made on or after January 1, 1993 (the amount of any
Restricted Payment, if other than cash, to be based upon fair market value as
determined in good faith by the Company's Board of Directors whose determination
shall be conclusive) would exceed an amount equal to the greater of (i) the sum
of $5,000,000 or (ii) the difference between (a) the Cumulative Credit and (b)
the sum of the aggregate amount of all Restricted Payments, and all Permitted
Investments made pursuant to clause (v) of the definition of "Permitted
Investments," made on or after January 1, 1993 plus 1.2 times Cumulative
Interest Expense.
Section 4.07 Reports to HoldersSection
The Company will send to the Trustee and to Noteholders,
within 15 days after the filing thereof with the SEC, copies of its annual
reports on Form 10-K, its Quarterly Reports on Form 10-Q and its Current Reports
on Form 8-K; provided, however, that notwithstanding any event which results in
the Company being relieved of its obligation to file information, documents and
reports with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act, the
Company shall nevertheless continue, so long as any Note remains outstanding and
unpaid, (i) to file with the SEC (at such time as it would be required to file
such reports under the Exchange Act), and to send to the Trustee and Noteholders
(within 15 days thereafter), quarterly and annual reports and information,
documents and other reports substantially equivalent to those it would have been
obligated to file if it had remained subject to such sections of the Exchange
Act, and (ii) so long as the Notes have not been registered pursuant to the
Registration Rights Agreement, upon the request of a Noteholder, to provide
information required to be delivered under Rule 144A(d)(4) under the Securities
Act to such Noteholder and its prospective purchasers designated by such
Noteholder.
Section 4.08 Notice of Defaults Or Events of Default
In the event that any Default or Event of Default shall occur
and be continuing, the Company will, within 10 days of the occurrence thereof,
give written notice of such Default or Event of Default to the Trustee.
Section 4.09 Compliance Certificates
Compliance Certificates.
The Company shall deliver to the Trustee on or before 105 days
after the end of its fiscal year and on or before 50 days after the end of its
second fiscal quarter in each year an Officers' Certificate stating whether or
not the signers know of any Default or Event of Default. If they do know of such
a Default or Event of Default, the certificate shall describe such Default or
Event of Default and the efforts to remedy or obtain a waiver of the same. The
certificate must comply with Section 11.04 hereof.
Section 4.10 Covenant to Secure Notes Equally
Except for Liens created or assumed by the Company
in connection with the acquisition
of real property or equipment to be used by the Company in the operation of its
business which do not secure Indebtedness in excess of the purchase price of
such real property or equipment, the Company covenants that, if it shall create
or assume any Lien upon any of its property or assets, whether now owned or
hereafter acquired, it will make or cause to be made effective provisions
whereby the Notes will be secured by such Lien equally and ratably with all
other Indebtedness of the Company secured by such Lien as long as any such other
Indebtedness of the Company shall be so secured. The restriction imposed by this
Section 4.10 shall not apply with respect to a Lien, including a pledge of
Capital Stock of a Subsidiary or an Affiliate, to secure Indebtedness which is
an obligation of such Subsidiary or Affiliate and not an obligation of the
Company.
Section 4.11 Limitation on Investment in Affiliates and Unrestricted
Subsidiaries.
After the date of this Indenture, the Company may not, nor
will the Company allow any Restricted Subsidiary to, make a Restricted
Investment other than by way of Permitted Investments unless pro forma for such
Restricted Investment the Leverage Ratio of the Company does not exceed 7.75:1.
Section 4.12 Limitation on Sale of Assets
Neither the Company nor any Restricted Subsidiary of the
Company shall sell an asset (including Capital Stock of Restricted Subsidiaries)
or reclassify a Restricted Subsidiary existing on the date of this Indenture as
an Unrestricted Subsidiary (a "Reclassification") unless (a) in the case of an
asset sale, (i) at least 75% of the net proceeds received by the Company or such
Restricted Subsidiary is in cash, cash equivalents or common or preferred
Capital Stock or debt securities issued by a Person which has Investment Grade
Senior Debt and (ii) cash proceeds from the asset sale are used to reduce debt
and such debt reduction results in the Company's Leverage Ratio being lower pro
forma after such asset sale than prior to such asset sale, or (b) in the case of
an asset sale or Reclassification, pro forma for such asset sale or
Reclassification the Indebtedness of the Company and its Restricted
Subsidiaries, on a consolidated basis, shall not be more than 7.75 multiplied by
Annualized Pro Forma EBITDA, provided that in no case under either clause (a) or
(b) shall the Company undertake an asset sale or Reclassification, if pro forma
for such an asset sale or Reclassification the Company and its Restricted
Subsidiaries would be the owners of fewer than 75% of the cable systems
(measured on the basis of basis subscribers as of February 22, 1994) owned by
the Company and its Restricted Subsidiaries as of February 22, 1994, provided
however, that the Company and its Restricted Subsidiaries may sell additional
assets of up to 10% of assets held as of February 22, 1994 if the consideration
received from such sale is (i) cash which is used within 12 months to purchase
additional systems of equivalent value or (ii) other cable systems of equivalent
value.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 Mergers and Consolidations.
The Company may not consolidate with, merge with or into, or
transfer all or substantially all of its assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions), to any
Person unless: (i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or to which the properties and assets of the Company are transferred
shall be a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of the Company under
the Notes and this Indenture, and the obligations under this Indenture shall
remain in full force and effect; (ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iii) immediately after giving effect to such
transaction on a pro forma basis for the most recent quarter, the pro forma
Consolidated Fixed Charge Ratio of the surviving entity shall be at least 1:1;
provided that, if the Consolidated Fixed Charge Ratio of the Company for the
most recent quarter preceding such transaction is within the range set forth in
Column A below, then the pro forma Consolidated Fixed Charge Ratio of the
surviving entity after giving effect to such transaction shall be at least equal
to the greater of the percentage of the Consolidated Fixed Charge Ratio of the
Company for the most recent quarter preceding such transaction set forth in
Column B below or the ratio set forth in Column C below:
A B C
1.1111:1 to 1.4999:1 90% 1.00:1
1.5 and higher 80% 1.35:1
and provided, further, that if the pro forma Consolidated Fixed Charge Ratio of
the surviving entity is 2:1 or more, the calculation in the preceding proviso
shall be inapplicable and such transaction shall be deemed to have complied with
the requirements of such proviso.
In connection with any consolidation, merger or transfer
contemplated by this Section 5.01, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this Section 5.01 and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
Section 5.02. Successor Person Substituted
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above, the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to a series of Notes
if:
(1) the Company defaults in the payment of any
principal of such series of Notes when the same becomes due
and payable at maturity, upon acceleration or otherwise;
(2) the Company defaults in the payment of any
interest on such series of Notes when the same becomes due and
payable and the default continues for a period of 30 days;
(3) the Company defaults in the observance or
performance of any other covenant in such series of Notes or
this Indenture for 60 days after written notice from the
Trustee or the Holders of not less than 25% in aggregate
principal amount of such series of Notes then outstanding;
(4) the Company fails to pay when due principal,
interest or premium aggregating $10,000,000 or more with
respect to any Indebtedness of the Company or any Restricted
Subsidiary, or the acceleration of any such Indebtedness which
default shall not be cured or waived, or such acceleration
shall not be rescinded or annulled, within ten days after
written notice as provided in this Indenture;
(5) a court of competent jurisdiction enters a final
judgment or judgments for the payment of money in excess of
$10,000,000 against the Company or any Restricted Subsidiary
and such judgment remains undischarged for a period of 60
consecutive days during which a stay of enforcement of such
judgment shall not be in effect;
(6) the Company, or any Restricted Subsidiary with
liabilities of greater than $10,000,000 under GAAP as of the
date of the event described in this clause (6), pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an
order for relief against it
in an involuntary case,
(C) consents to the appointment
of a Custodian of it or for
all or substantially all of
its property, or
(D) makes a general assignment
for the benefit of its
creditors;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the
Company, or any Restricted
Subsidiary with liabilities
of greater than $10,000,000
under GAAP as of the
effective date of such
order or decree, in an
involuntary case,
(B) appoints a Custodian of the
Company, or any Restricted
Subsidiary with liabilities
of greater than $10,000,000
under GAAP as of the
effective date of such
order or decree, or for all
or substantially all of its
property, or
(C) orders the liquidation of
the Company, or any
Restricted Subsidiary with
liabilities of greater than
$10,000,000 under GAAP as
of the effective date of
such order or decree, and
the order or decree remains
unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clauses (3) and (4) is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of a series of Notes notifies the Company and the
Trustee, of the Default and the Company does not cure the Default within (a) 60
days after receipt of such notice in the case of a Default under clause (3) and
(b) 10 days after receipt of such notice in the case of a Default under clause
(4). The notice must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default." If the Holders of at least 25% in
principal amount of a series of outstanding Notes request the Trustee to give
such notice on their behalf, the Trustee shall do so.
Subject to Section 7.05 hereof, the Trustee may withhold
notice to the Holders of a series of Notes of any default (except in payment of
principal or interest on the Notes) if the Trustee considers it to be in the
best interest of the Holders of such series of Notes to do so.
Section 6.02. Acceleration
If an Event of Default (other than an Event of Default
resulting from certain events of bankruptcy, insolvency or reorganization)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of not less than 25% in aggregate principal amount of a series of Notes affected
thereby then outstanding may declare to be immediately due and payable the
principal amount of all such series of Notes then outstanding plus accrued but
unpaid interest to the date of acceleration; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of such series of outstanding Notes by written notice to the Trustee and the
Company may rescind and annul such acceleration and its consequences if all
existing Events of Default, other than the nonpayment of accelerated principal
or interest, have been cured or waived. In case an Event of Default specified in
Section 6.01(6) or (7) occurs, such amount with respect to all of the Notes
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
Section 6.03. Other Remedies
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture and may take any necessary
action requested of it as Trustee to settle, compromise, adjust or otherwise
conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults and Events of Default
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in principal amount of a series of Notes affected thereby then
outstanding have the right to waive any existing default or compliance with any
provision of this Indenture or such series of Notes and to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, subject to certain limitations specified in this Indenture.
Section 6.05. Control by Majority
The Holders of a majority in principal amount of a series of
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder of such series of Notes not taking part in such direction, and the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may
not lawfully be taken or if the Trustee in good faith shall, by a Trust Officer,
determine that the proceedings so directed would involve it in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 6.06. Limitation on Suits
Subject to Section 6.07 below, a Noteholder of a series of
Notes may not institute any proceeding or pursue any remedy with respect to this
Indenture or such series of Notes unless:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate
principal amount of such series of Notes then outstanding make
a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; 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 aggregate principal
amount of such series of Notes then outstanding.
A Noteholder of a series of Notes may not use this Indenture
to prejudice the rights of another Noteholder of such series of Notes or to
obtain a preference or priority over another Noteholder.
Section 6.07. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of and interest on
the Note on or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
is absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee
If an Event of Default in payment of principal or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Notes for the whole amount of unpaid
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then
borne by the Notes, and such further amounts as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
Custodian in any such judicial proceeding is hereby authorized by each
Noteholder 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
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee or any predecessor trustee
under Section 7.07 hereof.
To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee or any predecessor Trustee under Section 7.07
hereof out of the estate in any such proceeding shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other properties which
the Holders of the Notes may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee or any predecessor trustee
for amounts due under Sections 6.09 and 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid
on the Notes for principal and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Notes; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee
(a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the same circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(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.
The Trustee, however, shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05 hereof.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if
it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so
provided, paragraphs (a), (b) and (c) of this Section 7.01 shall govern every
provision of this Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty
or exercise any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel, or both, which shall conform to the provisions of
Section 11.05 hereof. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on
such Certificate or Opinion.
(3) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably
believes to be authorized or within its rights or powers.
(5) The Trustee may consult with counsel, and the
advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection in respect
of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of
such counsel.
Section 7.03. Individual Rights of Trustee
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes and it shall not be
responsible for any statement in the Notes other than its certificate of
authentication.
Section 7.05. Notice of Defaults
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of or interest on any Note the Trustee may withhold the notice if
and so long as the board of directors of the Trustee, the executive committee or
any trust committee of such board and/or its Trust Officers in good faith
determine(s) that withholding the notice is in the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders
Within 60 days after May 15 of any year, commencing the May 15
following the date of this Indenture, the Trustee shall mail to each Noteholder
a brief report dated as of such May 15 that complies with TIA SS 313(a) (but if
no event described in TIA SS 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA SS 313(b)(2).
Reports pursuant to this Section shall be transmitted by mail:
(1) to all registered Holders of Notes, as the
names and addresses of such Holders appear on the Registrar's
books;
(2) to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to TIA SS
313(b), to each Noteholder whose name and address is preserved
at the time by the Trustee, as provided in Section 2.05.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company shall notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.07. Compensation and Indemnity
The Company shall pay to the Trustee from time to time
reasonable compensation for its services hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust). The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or reasonable expense incurred by it in
connection with the performance of its duties under this Indenture including the
reasonable 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 (including, without limitation, settlement costs). The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by the Trustee through its
negligence or bad faith. To secure the Company's payment obligations in Sections
6.09 and 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee except such money or property held in
trust to pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. However, in the event that such
expenses of administration are disallowed by a final judgment of a court of
competent jurisdiction, the expenses thereby, and all other unreimbursed
expenses of the Trustee, shall constitute a general unsecured claim of the
Trustee against the estate.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 10.
Section 7.08. Replacement of Trustee
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of a series of outstanding Notes may
remove the Trustee by notifying the removed Trustee and may appoint a successor
Trustee with the Company's written consent. Subject to the provisions of Section
6.11, any Noteholder who has been a bona fide holder of Notes 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, if the Trustee fails, after written notice therefor
by such Holder, to comply with the provisions of clause (i) of TIA 310(b). The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section
7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property;
(4) the Trustee otherwise becomes incapable of
acting; or
(5) a successor corporation becomes successor
Trustee pursuant to Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of a series of
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification
This Indenture shall always have a Trustee who satisfies the
requirements of TIA SS 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $5,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA SS 310(b), including the provision in SS 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA 311(a), excluding
any creditor relationship listed in TIA 311(b). A Trustee who has resigned or
been removed shall be subject to TIA 311(a) to the extent indicated therein.
Section 7.12. Paying Agents
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums
held by it as agent for the
payment of principal of or
interest on, the Notes
(whether such sums have
been paid to it by the
Company or by any obligor
on the Notes) in trust for
the benefit of Holders of
the Notes;
(B) that it will at any time
during the continuance of
any Event of Default, upon
written request from the
Trustee, deliver to the
Trustee all sums so held in
trust by it; and
(C) that it will give the
Trustee written notice
within three (3) Business
Days of any failure of the
Company (or by any obligor
on the Notes) in the
payment of any installment
of the principal of or
interest on, the Notes when
the same shall be due and
payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture with respect to one or both series of Notes without notice to or
consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to convey, transfer, assign, mortgage or pledge
any property to the Trustee and otherwise to comply with
Section 4.10 hereof;
(3) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(4) to issue up to $300,000,000 in aggregate
principal amount of additional Notes pursuant to this
Indenture; or
(5) to cure any ambiguity, defect or inconsistency,
or to make any other change that does not materially and
adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Company in
the execution of any supplemental indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders
The Company and the Trustee may modify or supplement this
Indenture with respect to a series of Notes with the written consent of the
Holders of at least one-half in principal amount of an outstanding series of
Notes without notice to any Noteholder. The Holders of a majority in aggregate
principal amount of an outstanding series of Notes may waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to a series of Notes without notice to any Noteholder. Subject to
Section 8.04, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Notes whose Holders must
consent to an amendment, supplement or waiver to this
Indenture or the Notes;
(2) reduce the rate of or change the time for
payment of interest on any Note;
(3) reduce the principal of or change the stated
maturity of any Note;
(4) change the amount or time of any payment required
by the Notes or provide for the redemption of the Notes prior
to maturity;
(5) waive a default in the payment of the principal
of, interest on, or redemption payment with respect to, any
Note;
(6) make any Note payable in money other than that
stated in the Note or change the place of payment from New
York, New York; or
(7) make any changes in Sections 6.04, 6.07 hereof
or this sentence of Section 8.02.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Noteholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (7) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Note about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new security that reflects the
changed terms.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplement until the
Board of Directors approves it.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of IndentureSection
If at any time
(a) either
(i) there shall have been canceled by the
Trustee or delivered to the Trustee for
cancellation all Notes theretofore
authenticated and delivered (other than any
Notes that are asserted to have been
destroyed, lost or stolen and that shall
have been replaced as provided in Section
2.07 hereof, or paid, or Notes for whose
payment money has theretofore been deposited
in trust with the Trustee); or
(ii) all such Notes not theretofore canceled by
the Trustee or delivered to the Trustee for
cancellation shall have become due and
payable, or are by their terms to become due
and payable within one (1) year, and the
Company has deposited or caused to be
deposited with the Trustee as trust funds
the entire amount sufficient to pay at
maturity the principal of and accrued
interest on all such Notes not theretofore
canceled by the Trustee or delivered to the
Trustee for cancellation; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been complied
with; and
(d) the Company has delivered to the Trustee
an Opinion of Counsel stating that the documents and other items that have been
or are therewith delivered to the Trustee conform to the requirements of this
Indenture, and that, upon the basis of a Company Request and the accompanying
documents and items specified in this Section 9.01, all conditions precedent
provided for herein relating to the satisfaction and discharge of this Indenture
have been complied with, then, upon Company Request, this Indenture and the
rights and interests hereby created shall cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of Notes),
and the Trustee, at the cost and expense of the Company, shall, subject to
Section 9.05 hereof, execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 6.09, 7.07, 7.08, 9.04 and 9.05 shall survive until the Notes are no
longer outstanding. Thereafter, the Company's obligations to the Trustee under
Sections 7.07, 9.04 and 9.05 hereof shall survive.
Section 9.02. Funds Deposited for Payment of Notes
All moneys deposited with the Trustee pursuant to Section 9.01
hereof shall be held in trust and shall be available for payment when the Notes
become due and payable in accordance with their terms, either directly or
through any Paying Agent, to the Holders of the particular Notes for the payment
of which such moneys have been deposited with the Trustee.
Section 9.03. Moneys Held by Paying Agent
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Company, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 9.04. Moneys Held by Trustee
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company in trust for the payment of the principal of or
interest on any Note that are not applied but remain unclaimed by the Holder of
such Note for two (2) years after the date upon which the principal of or
interest on such Note shall have respectively become due and payable shall be
repaid to the Company upon Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the 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 any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, either mail to each Noteholder
affected, at the address shown in the register of the Notes maintained by the
Registrar pursuant to Section 2.03 hereof, or cause to be published once a week
for two successive weeks, in a newspaper published in the English language,
customarily published each Business Day and of general circulation in the City
of New York, New York, a 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 mailing or publication, any unclaimed balance of such moneys then
remaining will be repaid to the Company. After payment to the Company,
Noteholders entitled to the money must look only to the Company for payment as
general creditors unless applicable abandoned property law designates another
person.
Section 9.05. Reinstatement
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 9.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 9 until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 9.01; provided, however, that if the Company has made any payment
of principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.01. Applicability of Article; Company Option to Effect Defeasance
The Company may at its option by a Board Resolution at any
time, with respect to the Notes elect to have Section 10.02 or Section 10.03
hereof be applied to an outstanding series of Notes upon compliance with the
conditions set forth below in this Article 10.
Section 10.02. Defeasance and Discharge
Upon the Company's exercise of the option described in Section
10.01 above applicable to this Section with respect to such series of Notes, the
Company shall be deemed to have been discharged from its obligations with
respect to such series of Notes on the date the conditions set forth in Section
10.04 below are satisfied (hereinafter, "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such series of Notes and to have
satisfied all its other obligations under such series of Notes and this
Indenture insofar as such series of Notes are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 10.06 hereof, 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 any outstanding series of Notes to receive solely from the trust
funds described in Section 10.04 hereof and as more fully set forth in such
Section, payments in respect of the principal of and interest on such series of
Notes when such payments are due, (B) the Company's obligations with respect to
such series of Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07 and 2.08
hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee
hereunder (including claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof) and (D) this Article 10. Subject to compliance with this
Article 10, the Company may exercise its option under this Section 10.02 with
respect to such series of Notes notwithstanding the prior exercise of its option
under Section 10.03 below with respect to the Notes.
Section 10.03. Covenant Defeasance
Upon the Company's exercise of the option in Section 10.01
above applicable to this Section with respect to such series of Notes, the
Company shall be released from its obligations under Article III, Sections 4.04,
4.05, 4.06, 4.10, 4.11 and 4.12, and clause (iii) of Section 5.01 hereof with
respect to any outstanding series of Notes on and after the date the conditions
set forth in Section 10.04 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 specified Section or portion
thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified Section or portion thereof or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby.
Section 10.04. Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
Section 10.02 or Section 10.03 above to any outstanding series of Notes:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 hereof who shall
agree to comply with the provisions of this Article 10
applicable to it) as 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 each
series of Notes, (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 the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of and
accrued interest on any outstanding series of Notes at the
maturity date of such principal or interest;
(2) no Event of Default or Default with respect to
such series of Notes shall have occurred and be continuing on
the date of such deposit, or shall have occurred and be
continuing at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in
respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration
of such period);
(3) such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes
of the TIA with respect to any securities of the Company;
(4) such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(5) in the case of an election under Section 10.02
above, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that the Company has received from,
or there has been published by, the Internal Revenue Service a
ruling to the effect that, and such opinion shall confirm
that, the Holders of the outstanding Notes or persons in their
positions will not recognize income, gain or loss for Federal
income tax purposes as a result of such Defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such Defeasance had not occurred;
(6) in the case of an election under Section 10.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not
occurred;
(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 10.02 above or the
Covenant Defeasance under Section 10.03 above (as the case may
be) have been complied with; and
(8) the Company shall have delivered to the Trustee
an Officers' Certificate stating its intention to effect a
Defeasance pursuant to the provisions of this Article 10 at
least sixty (60) days prior to such Defeasance.
Section 10.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 10.04 in
respect of any outstanding series of Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal and accrued 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 10.04 above 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 any outstanding series
of Notes.
Anything in this Article 10 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 10.04 above 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 10.06. Reinstatement
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 10.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article 10 until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 10.01;
provided, however, that if the Company has made any payment of principal of or
accrued interest on any Notes because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 11.02. Notices
Any notice or communication shall be given in writing
and delivered in person, sent by telex or telephone facsimile, delivered by
commercial courier service or mailed by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
Adelphia Communications Corporation
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Copy to:
Xxxxxxxx Ingersoll Professional Corporation
1 Oxford Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxxx, Xx., Esq.
If to the Trustee:
Bank of Montreal Trust Company
Wall Street Plaza
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail, postage prepaid, at his address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA SS 313(c), to the extent required by the
TIA.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other HoldersSection
11.03.Communications by Holders with Other HoldersSection 11.03.Communications
by Holders with Other Holders
Noteholders may communicate pursuant to TIA SS 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA SS 312(c).
Section 11.04. Certificate and Opinion as to Conditions...
Upon any request or application by the Company to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) stating that, in
the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 11.05 below) stating that, in
the opinion of such counsel, all such conditions precedent
have been complied with.
Section 11.05. Statements Required in Certificate and Opinion
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA SS 314(a)(4)) shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(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 such Person,
it or he has made such examination or investigation as is
necessary to enable it or 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 or not, in the opinion
of such Person, such covenant or condition has been complied
with.
Section 11.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of a series of Notes have concurred in any direction, waiver or
consent, such series of Notes owned by the Company or any other obligor on such
series of Notes or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
such obligor shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only such series of Notes which the Trustee knows are so owned shall
be so disregarded. Such series of Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such series of Notes
and that the pledgee is not the Company or any other obligor upon such series of
Notes or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or such obligor.
Section 11.07. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
Section 11.08. Business Days; Legal Holidays
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day
on which banking institutions are not required to be open in the State of New
York. If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 11.09. Governing Law
The laws of the State of New York shall govern this Indenture
and the Notes without regard to principles of conflicts of law.
Section 11.10. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.11. No Recourse against Others
No recourse for the payment of the principal of or accrued
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any of the Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation or
against the property or assets of any such stockholder, officer, employee or
director, either directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the Notes are solely obligations of the
Company, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, any stockholder, officer, employee or director of the
Company or any successor corporation because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or the Notes or implied therefrom, and
that any and all such personal liability of, and any and all claims against
every stockholder, officer, employee and director, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Notes. It is understood that this
limitation on recourse is made expressly for the benefit of any such
shareholder, employee, officer or director and may be enforced by any of them.
Section 11.12. Successors
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee, any additional trustee
and any Paying Agents in this Indenture shall bind its successor.
Section 11.13. Multiple Counterparts
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.15. Separability
Each provision of this Indenture shall be considered
separable and, if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or the Notes 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.
[The rest of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed,
and attested, all as of the date and year first written above.
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Milliard_____
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
WITNESS:
__/s/ Xxxxxx X. Schuler_____
Name: Xxxxxx X. Xxxxxxx
BANK OF MONTREAL TRUST COMPANY, as Trustee
By: __/s/ Xxxxx Morse__
Name: Xxxxx Xxxxx
Title: Vice President
WITNESS:
_/s/ Xxxxxxx Redding___
Name: Xxxxxxx Xxxxxxx
EXHIBIT A
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[Face of Note]
__% Senior Notes due 200_
CUSIP No. ____________ $___,000,000
ADELPHIA COMMUNICATIONS CORPORATION
promises to pay to Cede & Co. or registered assigns, the principal sum
of ___________ Dollars on ________ __, 200_.
Interest Payment Dates:
Record Dates:
Dated:
ADELPHIA COMMUNICATIONS CORPORATION
By
Name:
Title:
(SEAL)
This is one of the Notes referred to in the within-mentioned Indenture:
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
Authorized Signature
[Back of Note]
__% Senior Notes due 200_
Unless and until it is exchanged in whole or in part for Notes
in definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT (1)
IT WILL NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY, OR ANY AFFILIATE OF THE COMPANY, WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X
XXXXX XXX XXX, (X) XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (2) WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF
THE ACT, AS USED HEREIN. THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE ACT.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Adelphia Communications Corporation, a Delaware
corporation (the "Company") promises to pay interest on the principal amount of
this Note at __% per annum from July 15, 1999 until January 15, 200_ and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company shall pay interest
and Liquidated Damages, if any, semi-annually in arrears on January 15 and July
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 15, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal from time to
time on demand at a rate equal to the per annum rate on the Notes then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall make payments in
respect of the Notes represented by the Global Notes (including principal,
interest and Liquidated Damages, if any) by wire transfer of immediately
available funds to the accounts specified by the Note Custodian. With respect to
Notes issued in definitive form, the Company shall make all payments of
principal, interest and Liquidated Damages, if any, by mailing a check to each
such Holder's registered address, provided that all payments with respect to
Notes having an aggregate principal amount of $100,000 or more, the Holders of
which have given wire transfer instructions to the Company at least ten business
days prior to the applicable payment date, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. The Notes represented by the Global Notes are expected to be eligible
to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary
market trading activity in such notes will, therefore, be required by DTC to be
settled in immediately available funds. The Company expects that secondary
trading in the Definitive Notes also will be settled in immediately available
funds.
3. PAYING AGENT AND REGISTRAR. Initially, Bank of Montreal
Trust Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of January 13, 1999 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code SS 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes issued under the Indenture are senior unsecured obligations of
the Company limited to $700 million in aggregate principal amount.
5. MANDATORY REDEMPTION. Except as set forth in paragraph 6
below, the Company shall not be required to make mandatory redemption payments
with respect to the Notes.
6. REPURCHASE AT OPTION OF HOLDER. Within 50 days of (i) the
proposed occurrence of a Change of Control or (ii) the occurrence of Change of
Control Triggering Event, the Company shall be required to make an offer (a
"Change of Control Offer") to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder's Notes at a purchase price equal to
100% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase, which date shall be
no later than 50 days from the date such notice is mailed (the "Change of
Control Payment Date"). Within 50 days of (i) the proposed occurrence of a
Change of Control or (ii) the occurrence of Change of Control Triggering Event,
the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture. Such right
to require the repurchase of Notes shall not continue after discharge of the
Company from its obligations with respect to the Notes. The board of directors
of the Company may not waive this provision.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture.
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
9. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture with respect to a series of Notes or a series of Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of an outstanding series of Notes, and any existing
default or compliance with any provision of the Indenture with respect to a
series of Notes or a series of Notes may be waived with the consent of the
Holders of a majority in principal amount of an outstanding series of Notes.
Without the consent of any Holder of a series of Notes, the Indenture with
respect to a series of Notes or a series of Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's obligations to Holders of a series of Notes in case
of a merger or consolidation, to issue up to $300,000,000 in aggregate principal
amount of additional Notes, to transfer, assign, mortgage or pledge any property
to the Trustee and otherwise comply with the covenant to secure Notes equally,
to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
10. DEFAULTS AND REMEDIES. An Event of Default with respect to
a series of Notes occurs if: (i) the Company defaults in the payment when due of
any interest on, or Liquidated Damages with respect to, any such series of Notes
and such default continues for a period of 30 days; (ii) the Company defaults in
the payment of the principal of any such series of Notes at its maturity; (iii)
the Company fails to observe or perform any other covenant, representation,
warranty or other agreement in the Indenture or the Notes for 60 days after
written notice to the Company by the Trustee or the Holders of at least 25% in
principal amount of such series of Notes then outstanding; (iv) the Company
fails to pay when due principal, interest or premium aggregating $10,000,000 or
more with respect to any Indebtedness of the Company or any Restricted
Subsidiary, or the acceleration of any such Indebtedness which default shall not
be cured or waived, or such acceleration shall not be rescinded or annulled,
within 10 days after written notice; (v) a final judgment or final judgments for
the payment of money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
judgments exceeds $10 million; or (vi) the Company or any Restricted Subsidiary
with liabilities of greater than $10,000,000 under GAAP as of the date of the
event described in this clause, pursuant to or within the meaning of Bankruptcy
Law: (a) commences a voluntary case, (b) consents to the entry of an order for
relief against it in an involuntary case, (c) consents to the appointment of a
Custodian of it or for all or substantially all of its property, or (d) makes a
general assignment for the benefit of its creditors, (vii) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for
relief against the Company, or any Restricted Subsidiary with liabilities of
greater than $10,000,000 under GAAP as of the effective date of such order or
decree in an involuntary case, (b) appoints a custodian of the Company, or any
Restricted Subsidiary of Restricted Subsidiary with liabilities of greater than
$10,000,000 under GAAP as of the effective date of such order or decree or for
all or substantially all of its property or (c) orders the liquidation of the
Company, or any Restricted Subsidiary with liabilities greater than $10,000,000
under GAAP as of the effective date of such order or decree; and the order or
decree remains unstayed and in effect for 60 consecutive days. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding series of Notes may declare all of such
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case an Event of Default specified in clauses (6) or (7) of Section 6.01 of the
Indenture occurs with respect to the Company, or a Restricted Subsidiary with
liabilities of greater than $10,000,000 under GAAP as of the effective date of
such order or decree, all outstanding series of Notes will become due and
payable without further action or notice. Holders of such series of Notes may
not enforce the Indenture with respect to such series of Notes or such series of
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding series of
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of such series of Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of not less than a majority in aggregate
principal amount of the such series of Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture, except a
continuing Default or Event of Default in the payment of the principal of and
Liquidated Damages, if any, or interest on, such series of Notes (provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding series of Notes may rescind an acceleration and its
consequence, including any related payment default) or a default with respect to
any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Note affected.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required,
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default and what action
the Company is taking or proposes to take thereto.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability including any rights against any general partner of the Company in its
capacity as general partner. The waiver and release are part of the
consideration for the issuance of the Notes.
13. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
15. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
SECURITIES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Notes Registration Rights Agreement dated as of January 13,
1999, between the Company and the party named on the signature pages thereof
(the "Registration Rights Agreement").
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Adelphia Communications Corporation
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date: __________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Article 3 of the Indenture, check the box below:
___Article 3
If you want to elect to have only part of the Note purchased
by the Company pursuant to Article 3 of the Indenture, state the amount you
elect to have purchased: $________
Date: __________ Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:
SCHEDULE OF EXCHANGES OF NOTES2
The following exchanges of a part of this Global Note for
other Notes have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized office
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease (or increase) Custodian
-------------------------
1 This paragraph should be included only if the Note is issued in global form.
2 This should be included only if the Note is issued in global form.
