Exhibit 4.2
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INDENTURE
Dated as of September 19, 1997
Among
FRONTIERVISION HOLDINGS, L.P.
and
FRONTIERVISION HOLDINGS CAPITAL CORPORATION, as Issuers,
and
U.S. BANK NATIONAL ASSOCIATION
(d/b/a COLORADO NATIONAL BANK), as Trustee
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$237,650,000 Principal Amount at Maturity
11 7/8% Senior Discount Notes due 2007
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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(S) 310(a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ N.A.
(b)............................................... 7.08; 7.10; 13.02
(c)............................................... N.A.
(S) 311(a)............................................... 7.11
(b)............................................... 7.11
(c)............................................... N.A.
(S) 312(a)............................................... 2.05
(b)............................................... 13.03
(c)............................................... 13.03
(S) 313(a)............................................... 7.06
(b)(1)............................................ N.A.
(b)(2)............................................ 7.06
(c)............................................... 7.06; 13.02
(d)............................................... 7.06
(S) 314(a)............................................... 4.11; 4.12; 13.02
(b)............................................... N.A.
(c)(1)............................................ 13.04
(c)(2)............................................ 13.04
(c)(3)............................................ N.A.
(d)............................................... N.A.
(e)............................................... 13.05
(f)............................................... N.A.
(S) 315(a)............................................... 7.01(b)
(b)............................................... 7.05; 13.02
(c)............................................... 7.01(a)
(d)............................................... 7.01(c)
(e)............................................... 6.11
(S) 316(a)(last sentence)................................ 2.09
(a)(1)(A)......................................... 6.05
(a)(1)(B)......................................... 6.04
(a)(2)............................................ N.A.
(b)............................................... 6.07
(c)............................................... 10.04
(S) 317(a)(1)............................................ 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.04
(S) 318(a)............................................... 13.01
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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
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Other Definitions........................................ 25
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.......................................... 26
SECTION 1.04. Rules of Construction.................................... 27
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.......................................... 27
SECTION 2.02. Execution and Authentication............................. 29
SECTION 2.03. Registrar; Paying Agent; Depository...................... 30
SECTION 2.04. Paying Agent To Hold Money in Trust...................... 31
SECTION 2.05. Securityholder Lists..................................... 31
SECTION 2.06. Transfer and Exchange.................................... 31
SECTION 2.07. Replacement Securities................................... 42
SECTION 2.08. Outstanding Securities................................... 42
SECTION 2.09. Treasury Securities...................................... 42
SECTION 2.10. Temporary Securities..................................... 43
SECTION 2.11. Cancellation............................................. 43
SECTION 2.12. Defaulted Interest....................................... 43
SECTION 2.13. Payments of Interest..................................... 44
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee....................................... 45
SECTION 3.02. Selection of Securities To Be Redeemed................... 45
SECTION 3.03. Notice of Redemption..................................... 45
SECTION 3.04. Effect of Notice of Redemption........................... 46
SECTION 3.05. Deposit of Redemption Price.............................. 46
SECTION 3.06. Securities Redeemed in Part.............................. 47
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.................................... 47
SECTION 4.02. Maintenance of Office or Agency.......................... 47
SECTION 4.03. Limitation on Transactions with
Affiliates and Related Persons......................... 48
SECTION 4.04. Limitation on Indebtedness............................... 49
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SECTION 4.05. Disposition of Proceeds of Asset Sales................... 52
SECTION 4.06. Limitation on Restricted Payments........................ 55
SECTION 4.07. Corporate Existence...................................... 58
SECTION 4.08. Payment of Taxes and Other Claims........................ 59
SECTION 4.09. Notice of Defaults....................................... 59
SECTION 4.10. Maintenance of Properties................................ 59
SECTION 4.11. Compliance Certificate................................... 60
SECTION 4.12. Provision of Financial Information....................... 60
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.................. 61
SECTION 4.14. Change of Control........................................ 61
SECTION 4.15. [Intentionally Omitted].................................. 62
SECTION 4.16. Limitations on Dividends and Other Payment
Restrictions Affecting Restricted
Subsidiaries........................................... 62
SECTION 4.17. Designation of Unrestricted Subsidiaries................. 64
SECTION 4.18. Limitation on Liens...................................... 65
SECTION 4.19. Limitation on Guarantees of Indebtedness
by Restricted Subsidiaries............................. 65
SECTION 4.20. Limitation on Conduct of Business of
Capital................................................ 66
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Merger, Sale of Assets, etc.............................. 67
SECTION 5.02. Successor Corporation Substituted........................ 68
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default........................................ 69
SECTION 6.02. Acceleration............................................. 71
SECTION 6.03. Other Remedies........................................... 72
SECTION 6.04. Waiver of Past Default................................... 73
SECTION 6.05. Control by Majority...................................... 73
SECTION 6.06. Limitation on Suits...................................... 74
SECTION 6.07. Rights of Holders To Receive Payment..................... 74
SECTION 6.08. Collection Suit by Trustee............................... 75
SECTION 6.09. Trustee May File Proofs of Claim......................... 75
SECTION 6.10. Priorities............................................... 75
SECTION 6.11. Undertaking for Costs.................................... 76
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee........................................ 76
SECTION 7.02. Rights of Trustee........................................ 78
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SECTION 7.03. Individual Rights of Trustee............................. 79
SECTION 7.04. Trustee's Disclaimer..................................... 79
SECTION 7.05. Notice of Defaults....................................... 79
SECTION 7.06. Reports by Trustee to Holders............................ 79
SECTION 7.07. Compensation and Indemnity............................... 80
SECTION 7.08. Replacement of Trustee................................... 80
SECTION 7.09. Successor Trustee by Merger, etc......................... 82
SECTION 7.10. Eligibility; Disqualification............................ 82
SECTION 7.11. Preferential Collection of Claims Against
Company................................................ 83
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Issuers' Obligations...................... 83
SECTION 9.02. Application of Trust Money............................... 85
SECTION 9.03. Repayment to Issuers..................................... 85
SECTION 9.04. Reinstatement............................................ 86
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders............................... 86
SECTION 10.02. With Consent of Holders.................................. 87
SECTION 10.03. Compliance with Trust Indenture Act...................... 89
SECTION 10.04. Effect of Consents....................................... 89
SECTION 10.05. Notation on or Exchange of Securities.................... 90
SECTION 10.06. Trustee To Sign Amendments, etc.......................... 90
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01. Unconditional Guarantee.................................. 90
SECTION 11.02. Severability............................................. 91
SECTION 11.03. Release of a Guarantor................................... 92
SECTION 11.04. Limitation of Subsidiary Guarantor's
Liability.............................................. 93
SECTION 11.05. Contribution............................................. 93
SECTION 11.06. Execution of Subsidiary Guarantee........................ 93
SECTION 11.07. Additional Subsidiary Guarantors......................... 94
SECTION 11.08. Subordination of Subrogation and Other
Rights................................................. 94
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ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls............................. 95
SECTION 13.02. Notices.................................................. 95
SECTION 13.03. Communications by Holders with Other
Holders................................................ 97
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.............................................. 97
SECTION 13.05. Statements Required in Certificate or
Opinion................................................ 97
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar................ 98
SECTION 13.07. Governing Law............................................ 98
SECTION 13.08. No Recourse Against Others............................... 98
SECTION 13.09. Successors............................................... 98
SECTION 13.10. Counterpart Originals.................................... 98
SECTION 13.11. Severability............................................. 99
SECTION 13.12. No Adverse Interpretation of Other
Agreements............................................. 99
SECTION 13.13. Legal Holidays........................................... 99
SIGNATURES . . . ....................................................... 100
EXHIBIT A - Form of Security............................................ A-1
EXHIBIT B - Form of Certificate of Transfer............................. B-1
EXHIBIT C - Form of Certificate of Exchange............................. C-1
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NOTE: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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INDENTURE dated as of September 19, 1997, among FRONTIERVISION
HOLDINGS, L.P., a Delaware limited partnership (the "Company"), FRONTIERVISION
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HOLDINGS CAPITAL CORPORATION, a Delaware corporation ("Capital" and together
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with the Company, the "Issuers"), and U.S. BANK NATIONAL ASSOCIATION (d/b/a
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COLORADO NATIONAL BANK), as trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the 11 7/8% Senior
Discount Notes due 2007 of the Issuers:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Accreted Value" as of any date (the "Specified Date") means, with
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respect to each $1,000 original principal amount at maturity of Securities:
(i) if the Specified Date is one of the following dates (each a
"Semi-Annual Accrual Date"), the amount set forth opposite such date below:
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Semi-Annual Accreted
Accrual Date Value
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Issue Date...................... $ 631.18
March 15, 1998.................. 668.66
September 15, 1998.............. 708.36
March 15, 1999.................. 750.42
September 15, 1999.............. 794.97
March 15, 2000.................. 842.17
September 15, 2000.............. 892.18
March 15, 2001.................. 945.15
September 15, 2001.............. $1,000.00
(ii) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the sum of (a) the Accreted Value for the Semi-Annual Accrual Date
immediately preceding the Specified Date and (b) an amount equal to the
product of (x) the Accreted Value for the immediately following Semi-Annual
Accrual Date less the Accreted Value for the immediately preceding Semi-
Annual Accrual Date and (y) a fraction, the numerator of which is the
number of days actually elapsed
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from the immediately preceding Semi-Annual Accrual Date to the Specified
Date and the denominator of which is 180; and
(iii) if the Specified Date is after September 15, 2001, $1,000;
provided, however, that if the Company makes the Cash Interest Election, the
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Accreted Value shall be, and remain through the Stated Maturity of the
Securities, the Accreted Value as of the Semi-Annual Accrual Date on which the
Cash Interest Election is made.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
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connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a Restricted Subsidiary.
"Acquired Person" means, with respect to any specified Person, any
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other Person which merges with or into or becomes a Subsidiary of such specified
Person.
"Additional Interest" shall mean the meaning set forth in the
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Registration Rights Agreement.
"Advisory Committee" means the Advisory Committee of the General
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Partner established pursuant to the provisions of Article VI of the First
Amended and Restated Agreement of Limited Partnership of the General Partner, as
amended to the date of issuance of the Securities.
"Affiliate" means, with respect to any specified Person, any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar. See
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Section 2.03.
"Applicable Procedures" means, with respect to any transfer or
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exchange of interests in a Global Security, the rules and procedures of DTC,
Euroclear and Cedel that apply to such transfer or exchange.
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"Asset Acquisition" means (i) any capital contribution (by means of
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transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated, merged with or into the Company
or any Restricted Subsidiary or (ii) any acquisition by the Company or any
Restricted Subsidiary of the assets of any Person which constitute substantially
all of an operating unit or line of business of such Person or which is
otherwise outside of the ordinary course of business.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
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lease (that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale-leaseback transaction) to
any Person other than the Company or a Wholly Owned Restricted Subsidiary, in
one transaction or a series of related transactions, of (i) any Equity Interest
of any Restricted Subsidiary, (ii) any material license, franchise or other
authorization of the Company or any Restricted Subsidiary, (iii) any assets of
the Company or any Restricted Subsidiary which constitute substantially all of
an operating unit or line of business of the Company or any Restricted
Subsidiary or (iv) any other property or asset of the Company or any Restricted
Subsidiary outside of the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include (i) any transaction
consummated in compliance with Section 5.01 and the creation of any Lien not
prohibited by Section 4.18, (ii) sales of property or equipment that has become
worn out, obsolete or damaged or otherwise unsuitable for use in connection with
the business of the Company or any Restricted Subsidiary, as the case may be,
and (iii) any transaction consummated in compliance with Section 4.06. In
addition, solely for purposes of Section 4.05, any sale, conveyance, transfer,
lease or other disposition of any property or asset, whether in one transaction
or a series of related transactions, involving assets with a Fair Market Value
not in excess of $1.0 million individually or $2.0 million in any fiscal year
shall be deemed not to be an Asset Sale.
"Board of Directors" means (i) in the case of a Person that is a
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partnership, the board of directors of such Person's corporate general partner
(or if such general partner is itself a partnership, the board of directors of
such general partner's corporate general partner), (ii) in the case of a Person
that is a corporation, the board of directors of such Person and (iii) in
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the case of any other Person, the board of directors, management committee or
similar governing body or any authorized committee thereof responsible for the
management of the business and affairs of such Person. By way of illustration,
as of the date of this Indenture, any reference herein to the Board of Directors
of any of the Company, the General Partner or FVP GP means the board of
directors of FV Inc.
"Board Resolution" means, with respect to any Person, a duly adopted
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resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday that is not a day on which banking institutions in the City of New York
are authorized or obligated by law, resolution or executive order to close.
"Capitalized Lease Obligation" means, with respect to any Person for
----------------------------
any period, an obligation of such Person to pay rent or other amounts under a
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount shown on the balance sheet of such Person as determined in accordance
with GAAP.
"Cash Equivalents" means (i) any security, maturing not more than six
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months after the date of acquisition, issued by the United States of America, or
an instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (ii) any
certificate of deposit, time deposit, money market account or bankers'
acceptance maturing not more than six months after the date of acquisition
issued by any commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500.0 million, whose debt has a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or any successor rating agency, or "A-1" (or higher)
according to Standard & Poor's Rating Services, a division of the XxXxxx-Xxxx
Companies, Inc., or any successor rating agency and (iii) commercial paper
maturing not more than three months after the date of acquisition issued by any
corporation (other than an Affiliate of the Company) organized and existing
under the laws of the United States of America with a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or any successor rating agency, or "A-1" (or higher)
according to Standard & Poor's Rating Services, a division of the XxXxxx-Xxxx
Companies, Inc., or any successor rating agency.
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"Cash Interest Election" means the election by the Issuers on any
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Semi-Annual Accrual Date (with written notice of such election to be given by
the Issuers to the Trustee and the Holders on such date) to begin accruing cash
interest on the Securities (which election shall be irrevocable) on such Semi-
Annual Accrual Date.
"Change of Control" means the occurrence of any of the following
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events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the total voting power of the outstanding Voting
Equity Interests of the Company, the General Partner, FVP GP or FV Inc., as the
case may be; (b) the Company, the General Partner, FVP GP or FV Inc., as the
case may be, consolidates with, or merges with or into, another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, the General Partner, FVP GP or FV Inc., as
the case may be, in any such event pursuant to a transaction in which the
outstanding Voting Equity Interests of the Company, the General Partner, FVP GP
or FV Inc., as the case may be, are converted into or exchanged for cash,
securities or other property, other than any such transaction where the
outstanding Voting Equity Interests of the Company, the General Partner, FVP GP
or FV Inc., as the case may be, are converted into or exchanged for Voting
Equity Interests (other than Disqualified Equity Interests) of the surviving or
transferee Person and, immediately after such transaction, the Permitted Holders
or the holders of the Voting Equity Interests of the Company, the General
Partner, FVP GP or FV Inc., as the case may be, immediately prior thereto own,
directly or indirectly, more than 50% of the total voting power of the
outstanding Voting Equity Interests of the surviving or transferee Person; (c)
during any consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company, the General Partner,
FVP GP or FV Inc., as the case may be (together with any new directors whose
election to such Board of Directors was approved by the Permitted Holders or by
a vote of at least a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved), cease for any reason (other than by
action of the Permitted Holders) to constitute a majority
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of the Board of Directors of the Company, the General Partner, FVP GP or FV
Inc., as the case may be, then in office in any such case in connection with any
actual or threatened solicitation to which Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act applies or other actual or threatened
solicitation of proxies or consents; (d) any Person or Persons, other than
Permitted Holders, is or becomes entitled to appoint or designate more than 25%
of the members of the Advisory Committee; or (e) the admission of any Person as
a general partner of the Company, the General Partner or FVP GP, as the case may
be, after which the General Partner, FVP GP or FV Inc., as the case may be, does
not have the sole power to take all of the actions it is entitled or required to
take under the limited partnership agreement of the Company, the General Partner
or FVP GP, as the case may be, as in effect on the Issue Date; provided,
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however, that a Change of Control will be deemed not to have occurred in any of
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the foregoing circumstances (i) with respect to FV Inc. (either in its own
capacity or in its capacity as a direct or indirect corporate general partner of
any other Person), (ii) with respect to or as a result of the conversion of the
general partnership interest of FVP GP in the General Partner into a limited
partnership interest, or (iii) with respect to the events in clause (e) if the
change, event or condition giving rise thereto has been approved by the
Permitted Holders holding a majority in interest of the total outstanding Equity
Interests of the General Partner held by the Permitted Holders.
"Company" means the Person named as the "Company" in the first
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paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Consolidated Income Tax Expense" means, with respect to the Company
-------------------------------
for any period, the provision for federal, state, local and foreign income taxes
payable by the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the Company for
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any period, without duplication, the sum of (i) the interest expense of the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers'
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acceptance financing and (e) all capitalized interest and all accrued interest,
(ii) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Company and the Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP and (iii) dividends and distributions in respect of
Disqualified Equity Interests actually paid in cash by the Company during such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period, the net
-----------------------
income of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, adjusted, to the
extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses and all gains and losses from
the sale or other disposition of assets out of the ordinary course of business
(net of taxes, fees and expenses relating to the transaction giving rise
thereto) for such period, (ii) that portion of such net income derived from or
in respect of investments in Persons other than Restricted Subsidiaries, except
to the extent actually received in cash by the Company or any Restricted
Subsidiary, (iii) the portion of such net income (or loss) allocable to minority
interests in unconsolidated Persons for such period, except to the extent
actually received in cash by the Company or any Restricted Subsidiary (subject,
in the case of any Restricted Subsidiary, to the provisions of the immediately
following sentence of this definition), and (iv) net income (or loss) of any
other Person combined with the Company or any Restricted Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination. In calculating Consolidated Net Income as a component of
Consolidated Operating Cash Flow (x) for purposes of calculating the Debt to
Operating Cash Flow Ratio in connection with determining whether an Incurrence
of Indebtedness by the Company (but not the Restricted Subsidiaries) is
permitted under the Debt to Operating Cash Flow Ratio of the first paragraph of
Section 4.04 and (y) for purposes of calculating (I) Cumulative Available Cash
Flow pursuant to clause (c)(1) of Section 4.06 and (II) the Debt to Operating
Cash Flow Ratio pursuant to clause (b) of Section 4.06 in connection with
determining whether a Restricted Payment by the Company pursuant to clause (i),
(ii) or (iii) of Section 4.06 is permitted under such covenant, the net income
of any Restricted Subsidiary shall be excluded to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is not at the time (regardless of any waiver) permitted, directly
or indirectly, by reason of any Payment Restriction; provided, however, that
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net income
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shall not be so excluded in determining whether the Company could incur $1.00 of
Indebtedness under the Debt to Operating Cash Flow Ratio of the first paragraph
of Section 4.04 (A) (or in calculating Cumulative Available Cash Flow) for
purposes of determining whether any Restricted Payment other than those referred
to in clause (y) of this sentence is permitted under Section 4.06, (B) for
purposes of determining whether a Designation is permitted pursuant to clause
(b) of the first paragraph of Section 4.17 and (C) for purposes of determining
compliance with clause (a)(iii) of Section 5.01 (unless the applicable
transaction involves the Incurrence by the Company of additional Indebtedness).
"Consolidated Net Worth" with respect to any Person means the equity
----------------------
of the holders of Qualified Equity Interests of such Person and its Restricted
Subsidiaries, as reflected in a balance sheet of such Person determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Operating Cash Flow" means, with respect to any period,
--------------------------------
Consolidated Net Income for such period increased (without duplication) by the
sum of (i) Consolidated Income Tax Expense accrued according to GAAP for such
period to the extent deducted in determining Consolidated Net Income for such
period; (ii) Consolidated Interest Expense (other than dividends on Preferred
Equity Interests) for such period to the extent deducted in determining
Consolidated Net Income for such period; and (iii) depreciation, amortization
and any other non-cash items for such period to the extent deducted in
determining Consolidated Net Income for such period (other than any non-cash
item which requires the accrual of, or a reserve for, cash charges for any
future period) of the Company and the Restricted Subsidiaries, including,
without limitation, amortization of capitalized debt issuance costs for such
period, all of the foregoing determined on a consolidated basis in accordance
with GAAP minus non-cash items to the extent they increase Consolidated Net
Income (including the partial or entire reversal of reserves taken in prior
periods) for such period.
"Corporate Trust Office of the Trustee" shall be at the address of the
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Trustee specified in Section 13.02 or such other address as the Trustee may give
notice to the Issuers.
"Cumulative Available Cash Flow" means, as at any date of
------------------------------
determination, the positive cumulative Consolidated Operating Cash Flow realized
during the period commencing on the Issue Date and ending on the last day of the
most recent fiscal quarter immediately preceding the date of determination for
which consol-
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idated financial information of the Company is available or, if such cumulative
Consolidated Operating Cash Flow for such period is negative, the negative
amount by which cumulative Consolidated Operating Cash Flow is less than zero.
"Debt to Operating Cash Flow Ratio" means the ratio of (i) the Total
---------------------------------
Consolidated Indebtedness as of the date of calculation (the "Determination
Date") to (ii) four times the Consolidated Operating Cash Flow for the latest
fiscal quarter for which financial information is available immediately
preceding such Determination Date (the "Measurement Period"). For purposes of
------------------
calculating Consolidated Operating Cash Flow for the Measurement Period
immediately prior to the relevant Determination Date, (I) any Person that is a
Restricted Subsidiary on the Determination Date (or would become a Restricted
Subsidiary on such Determination Date in connection with the transaction that
requires the determination of such Consolidated Operating Cash Flow) will be
deemed to have been a Restricted Subsidiary at all times during such Measurement
Period, (II) any Person that is not a Restricted Subsidiary on such
Determination Date (or would cease to be a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Consolidated Operating Cash Flow) will be deemed not to
have been a Restricted Subsidiary at any time during such Measurement Period,
and (III) if the Company or any Restricted Subsidiary shall have in any manner
(x) acquired (including through an Asset Acquisition or the commencement of
activities constituting such operating business) or (y) disposed of (including
by way of an Asset Sale or the termination or discontinuance of activities
constituting such operating business) any operating business during such
Measurement Period or after the end of such period and on or prior to such
Determination Date, such calculation will be made on a pro forma basis in
accordance with GAAP as if, in the case of an Asset Acquisition or the
commencement of activities constituting such operating business, all such
transactions had been consummated on the first day of such Measurement Period
and, in the case of an Asset Sale or termination or discontinuance of activities
constituting such operating business, all such transactions had been consummated
prior to the first day of such Measurement Period.
"Default" means any event that is or with the passing of time or
-------
giving of notice or both would be an Event of Default.
"Depository" means, with respect to Securities issued in the form of
----------
one or more Global Securities, DTC or another Person designated as Depository by
the Issuers, which Person must
-10-
be a clearing agency registered under Section 17A of the Exchange Act.
"Designation" has the meaning set forth in Section 4.17.
-----------
"Designation Amount" has the meaning set forth in Section 4.17.
------------------
"Disposition" means, with respect to any Person, any merger,
-----------
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means any Equity Interest which, by
----------------------------
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable, at the option of the holder
thereof, in whole or in part, or exchangeable into Indebtedness on or prior to
the earlier of the maturity date of the Securities or the date on which no
Securities remain outstanding.
"DTC" means The Depository Trust Company.
---
"Equity Interest" in any Person means any and all shares, interests,
---------------
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, in
such Person, including any Preferred Equity Interests.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
---------
Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Registration Statement" has the meaning set forth in the
-------------------------------
Registration Rights Agreement.
"Expiration Date" has the meaning set forth in the definition of
---------------
"Offer to Purchase" below.
-11-
"Fair Market Value" means, with respect to any asset, the price (after
-----------------
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under pressure
or compulsion to complete the transaction; provided, however, that the Fair
-------- -------
Market Value of any such asset or assets shall be determined by the Board of
Directors of the Company, acting in good faith, and shall be evidenced by
resolutions of the Board of Directors of the Company delivered to the Trustee.
"FV Inc." means FrontierVision Inc., a Delaware corporation.
------
"FVOP" means FrontierVision Operating Partners, L.P., a Delaware
----
limited partnership.
"FVOP Indenture" means the Indenture dated as of October 7, 1996 among
--------------
FVOP, FrontierVision Capital Corporation and Colorado National Bank, as trustee.
"FVP GP" means FVP GP, L.P., a Delaware limited partnership.
------
"GAAP" means, at any date of determination, generally accepted
----
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
"General Partner" means FrontierVision Partners, L.P., a Delaware
---------------
limited partnership.
"guarantee" means, as applied to any obligation, (i) a guarantee
---------
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
-12-
"Holder" or "Securityholder" means the Person in whose name a Security
------ --------------
is registered on the books of the Registrar or any co-Registrar.
"Incur" means, with respect to any Indebtedness or other obligation of
-----
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
(or is merged into or consolidates with the Company or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Company or any Restricted Subsidiary),
shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with the Company or any Restricted
Subsidiary.
"Indebtedness" means (without duplication), with respect to any
------------
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable
incurred in the ordinary course of business and payable in accordance with
industry practices, or other accrued liabilities arising in the ordinary course
of business which are not overdue or which are being contested in good faith),
(v) every Capital Lease Obligation of such Person, (vi) every net obligation
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements of such Person, (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
of another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as obligor,
guarantor or otherwise, and (viii) any and all deferrals, renewals, extensions
and refundings of, or amendments,
-13-
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (i) through (vii) above. Indebtedness (i) shall never be
calculated taking into account any cash and cash equivalents held by such
Person, (ii) shall not include obligations of any Person (x) arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds in the ordinary
course of business, provided that such obligations are extinguished within two
Business Days of their incurrence unless covered by an overdraft line, (y)
resulting from the endorsement of negotiable instruments for collection in the
ordinary course of business and consistent with past business practices and (z)
under stand-by letters of credit to the extent collateralized by cash or Cash
Equivalents, (iii) which provides that an amount less than the principal amount
thereof shall be due upon any declaration of acceleration thereof shall be
deemed to be incurred or outstanding in an amount equal to the accreted value
thereof at the date of determination, (iv) shall include the liquidation
preference and any mandatory redemption payment obligations in respect of any
Disqualified Equity Interests of the Company or any Restricted Subsidiary and
(v) shall not include obligations under performance bonds, performance
guarantees, surety bonds and appeal bonds, letters of credit or similar
obligations, incurred in the ordinary course of business, including in
connection with the requirements of cable television franchising authorities,
and otherwise consistent with industry practice.
"Indenture" means this Indenture as amended or supplemented from time
---------
to time.
"Independent Financial Advisor" means a nationally recognized
-----------------------------
investment banking firm (i) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect financial interest in
the Company and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Global Securities" means the Regulation S Global Security and
-------------------------
the 144A Global Security, each of which contains a Securities Act Legend.
"Initial Securities" means the Securities containing a Securities Act
------------------
Legend.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in
-14-
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities
Act.
"Interest Payment Date" means the stated maturity of an installment of
---------------------
interest on the Securities.
"Interest Rate Protection Obligations" means, with respect to any
------------------------------------
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investment" means, with respect to any Person, any advance, loan,
----------
account receivable (other than an account receivable arising in the ordinary
course of business), or other extension of credit (including, without
limitation, by means of any guarantee) 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) or any purchase or ownership of any
stocks, bonds, notes, debentures or other securities of, any other Person.
"Issue Date" means the original issue date of the Securities,
----------
September 19, 1997.
"Issuer Request" or "Issuer Order" means a written request or order
-------------- ------------
signed in the name of each of the Issuers by its respective Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, President or a Vice
President, and by its respective Treasurer, an Assistant Treasurer, Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Lien" means any lien, mortgage, charge, security interest,
----
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security interest).
"Maturity Date" means the date, which is set forth on the face of the
-------------
Securities, on which the Securities will mature.
"Net Cash Proceeds" means the aggregate proceeds in the form of cash
-----------------
or Cash Equivalents received by the Company or any Restricted Subsidiary in
respect of any Asset Sale, including all cash or Cash Equivalents received upon
any sale, liquidation or other exchange of proceeds of Asset Sales received in a
form other than cash or Cash Equivalents, net of (i) the direct costs
-15-
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, (ii) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (iii) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale, (iv) amounts deemed, in good faith, appropriate by the Board of
Directors of the Company to be provided as a reserve, in accordance with GAAP,
against any liabilities associated with such assets which are the subject of
such Asset Sale (provided that the amount of any such reserves shall be deemed
to constitute Net Cash Proceeds at the time such reserves shall have been
released or are not otherwise required to be retained as a reserve) and (v) with
respect to Asset Sales by Restricted Subsidiaries, the portion of such cash
payments attributable to Persons holding a minority interest in such Restricted
Subsidiaries.
"Offer" has the meaning set forth in the definition of "Offer to
-----
Purchase" below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
----------------- -----
behalf of the Company by first class mail, postage prepaid, to each Holder at
his address appearing in the register for the Securities on the date of the
Offer offering to purchase up to the Accreted Value of Securities specified in
such Offer at the purchase price specified in such Offer (as determined pursu-
ant to this Indenture). Unless otherwise required by applicable law, the Offer
shall specify an expiration date (the "Expiration Date") of the Offer to
---------------
Purchase, which shall be not less than 20 Business Days nor more than 60 days
after the date of such Offer and a settlement date (the "Purchase Date") for
-------------
purchase of Securities to occur no later than five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
all the information required by applicable law to be included therein. The
Offer shall contain all instructions and materials necessary to enable such
holders to tender Securities pursuant to the Offer to Purchase. The Offer
shall also state:
(1) the Section of this Indenture pursuant to which the Offer to Purchase
is being made;
-16-
(2) the Expiration Date and the Purchase Date;
(3) the aggregate Principal Amount at Maturity of the outstanding
Securities offered to be purchased by the Company pursuant to the
Offer to Purchase (including, if less than all of the Securities, the
manner by which such amount has been determined pursuant to the
Section of this Indenture requiring the Offer to Purchase) (the
"Purchase Amount");
---------------
(4) the purchase price to be paid by the Company for each $1,000
aggregate Principal Amount at Maturity of Securities accepted for
payment (as specified pursuant to this Indenture) (the "Purchase
--------
Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a
Security tendered in a denomination of less than $1,000 Principal
Amount at Maturity must be tendered in whole;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that Securities not tendered or tendered but not purchased by the
Company pursuant to the Offer to Purchase will continue to accrete
Accreted Value as provided in this Indenture;
(8) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue as provided in this Indenture;
(9) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accept ed for payment pursuant to the
Offer to Purchase and that the Accreted Value thereof will cease to
increase on and that interest thereon shall cease to accrue on and
after the Purchase Date;
(10) that each holder electing to tender all or any portion of a Security
pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied
by a written instrument of
-17-
transfer in form satisfactory to the Company and the Trustee duly
executed by, the holder thereof or his attorney duly authorized in
writing);
(11) that holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next
preceding the Expiration Date, a telegram, telex, facsimile transmis-
sion or letter setting forth the name of the holder, the Principal
Amount at Maturity of the Security the holder tendered, the
certificate number of the Security the holder tendered and a statement
that such holder is withdrawing all or a portion of his tender;
(12) that (a) if Securities with an aggregate Accreted Value less than or
equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities with an aggregate Accreted Value in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Securities with
an aggregate Accreted Value equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that no
Securities in denominations of less than $1,000 Principal Amount at
Maturity are purchased in part); and
(13) that in the case of any holder whose Security is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the holder of such Security without service charge a new
Security or Securities, of any authorized denomination as requested by
such holder, in an aggregate Principal Amount at Maturity equal to and
in exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means, with respect to any Person, the Chairman of the Board
-------
of Directors, the President, any Vice President, the Chief Financial Officer,
the Treasurer, or the Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers or
---------------------
by an Officer and an Assistant Treasurer or
-18-
Assistant Secretary of each of FV Inc. and Capital complying with Sections 13.04
and 13.05; provided, however, that when the terms of this Indenture require the
-------- -------
delivery of an Officers' Certificate of the Company only, such Officers'
Certificate shall mean a certificate signed by two Officers or by an Officer and
an Assistant Treasurer or Assistant Secretary of FV Inc. complying with Sections
13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuers or the Trustee.
"Participant" means any Person who has an account with DTC.
-----------
"Payment Restriction" has the meaning set forth in Section 4.16.
-------------------
"Permitted Holders" means any of (a) the General Partner, FVP GP or FV
-----------------
Inc. for so long as a majority of the voting power of the Voting Equity
Interests of such Person is beneficially owned by any of the Persons listed in
the other clauses of this definition, (b) Xxxxx X. Xxxxxx, the President and
Chief Executive Officer of FV Inc. on the Issue Date, (c) Xxxx X. Xxx, the
Senior Vice President and Chief Financial Officer of FV Inc. on the Issue Date,
(d) any of X.X. Xxxxxx Investment Corporation, a Delaware corporation, Olympus
Cable, Inc., a Delaware corporation, First Union Capital Partners, Inc., a
Virginia corporation, and 1818 II Cable Corp., a Delaware corporation, (e) any
Person controlling, controlled by or under common control with any other Person
described in clauses (a)-(d) of this definition and (f) (i) the spouse or
children of any Person named in clause (b) or (c) of this definition and any
trust for the benefit of any such Persons or their respective spouses or
children; provided, however, that with respect to any such trust, such Persons
-------- -------
have the sole right to direct and control such trust and any Voting Equity
Interest owned by such trust, and (ii) any such Person's estate, executor,
administrator and heirs.
"Permitted Investments" means (a) Cash Equivalents; (b) Investments in
---------------------
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (c) loans and
advances to employees made in the ordinary course of business not to exceed $1
million in the aggregate at any one time outstanding; (d) Interest Rate
Protection Obligations; (e) bonds, notes, debentures or other securities
received as a result of Asset Sales permitted
-19-
under Section 4.05 not to exceed 25% of the total consideration for such Asset
Sales; (f) transactions with officers, directors and employees of the Company,
the General Partner, FVP GP, FV Inc. or any Restricted Subsidiary entered into
in ordinary course of business (including compensation or employee benefit
arrangements with any such director or employee) and consistent with past
business practices; (g) Investments existing as of the Issue Date and any
amendment, extension, renewal or modification thereof to the extent that any
such amendment, extension, renewal or modification does not require the Company
or any Restricted Subsidiary to make any additional cash or non-cash payments or
provide additional services in connection therewith; (h) any Investment for
which the sole consideration provided is Qualified Equity Interests of the
Company; and (i) any Investment consisting of a guarantee permitted under
clause (e) of Section 4.04.
"Permitted Liens" means (a) Liens on property of a Person existing at
---------------
the time such Person is merged into or consolidated with the Company; provided,
--------
however, that such Liens were in existence prior to the contemplation of such
-------
merger or consolidation and do not secure any property or assets of the Company
or any Restricted Subsidiary other than the property or assets subject to the
Liens prior to such merger or consolidation; (b) 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 which are being contested in good faith and by
appropriate proceedings; (c) Liens existing on the Issue Date; (d) Liens
securing only the Securities; (e) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded; provided, however, that any reserve or other appropriate provision
-------- -------
as shall be required in conformity with GAAP shall have been made therefor; (f)
easements, reservations of rights of way, restrictions and other similar
easements, licenses, restrictions on the use of properties, or minor
imperfections of title that in the aggregate are not material in amount and do
not in any case materially detract from the properties subject thereto or
interfere with the ordinary conduct of the business of the Company and the
Restricted Subsidiaries; (g) Liens resulting from the deposit of cash or
securities in connection with contracts, tenders or expropriation proceedings,
or to secure workers' compensation, surety or appeal bonds, costs of litigation
when required by law and public and statutory obligations or obligations under
franchise arrangements entered into in the ordinary course of business; (h)
Liens securing Indebtedness consisting of Capitalized Lease Obligations of the
Company, Purchase Money
-20-
Indebtedness of the Company, mortgage financings, industrial revenue bonds of
the Company or other monetary obligations of the Company, in each case incurred
solely for the purpose of financing all or any part of the purchase price or
cost of construction or installation of assets used in the business of the
Company or the Restricted Subsidiaries, or repairs, additions or improvements
to such assets, provided, however, that (I) such Liens secure Indebtedness in an
-------- -------
amount not in excess of the original purchase price or the original cost of any
such assets or repair, addition or improvement thereto (plus an amount equal to
the reasonable fees and expenses in connection with the incurrence of such
Indebtedness), (II) such Liens do not extend to any other assets of the Company
or the Restricted Subsidiaries (and, in the case of repair, addition or
improvements to any such assets, such Lien extends only to the assets (and
improvements thereto or thereon) repaired, added to or improved), (III) the
Incurrence of such Indebtedness is permitted by Section 4.04 and (IV) such Liens
attach within 90 days of such purchase, construction, installation, repair,
addition or improvement; (i) Liens to secure any refinancings, renewals,
extensions, modifications or replacements (collectively, "refinancing") (or
-----------
successive refinancings), in whole or in part, of any Indebtedness secured by
Liens referred to in the clauses above so long as such Lien does not extend to
any other property (other than improvements thereto); and (j) Liens securing
letters of credit entered into in the ordinary course of business and consistent
with past business practice.
"Permitted Strategic Investment" means an Investment in a Person
------------------------------
(including, without limitation, a Restricted Subsidiary which is not a Wholly
Owned Restricted Subsidiary and an Unrestricted Subsidiary) engaged in a
Related Business if, at the time of and immediately after giving pro forma
effect to such Investment (and any related transaction or series of transac-
tions), the Debt to Operating Cash Flow Ratio would be less than or equal to (i)
7.0 to 1.0 if the date of such Investment is on or before December 31, 1998 and
(ii) 6.5 to 1.0 thereafter.
"Person" means any individual, corporation, partner ship, joint
------
venture, association, joint-stock company, limited liability company, limited
liability limited partnership, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Preferred Equity Interest," in any Person, means an Equity Interest
-------------------------
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary
-21-
or involuntary liquidation or dissolution of such Person, over Equity Interests
of any other class in such Person.
"principal" of a debt security means the principal of the security
---------
plus, when appropriate, the premium, if any, on the security.
"Principal Amount at Maturity" means, with respect to each $1,000
----------------------------
original principal amount at maturity of the Securities, (i) $1,000 if no Cash
Interest Election is made by the Issuers, or (ii) if the Cash Interest Election
is made, the Accreted Value of such Securities as of the Semi-Annual Accrual
Date on which the Cash Interest Election is made.
"Private Exchange Securities" has the meaning set forth in the
---------------------------
Registration Rights Agreement.
"Public Equity Offering" means, with respect to any Person, a public
----------------------
offering by such Person of some or all of its Qualified Equity Interests, the
net proceeds of which (after deducting any underwriting discounts and
commissions) exceed $25.0 million.
"Purchase Amount" has the meaning set forth in the definition of
---------------
"Offer to Purchase" above.
"Purchase Date" has the meaning set forth in the definition of "Offer
-------------
to Purchase" above.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
---------------------------
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
provided that the aggregate principal amount of such Indebtedness does not
exceed the lesser of the Fair Market Value of such property or such purchase
price or cost.
"Purchase Price" has the meaning set forth in the definition of "Offer
--------------
to Purchase" above.
"Qualified Equity Interest" in any Person means any Equity Interest in
-------------------------
such Person other than any Disqualified Equity Interest.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified under Rule 144A under the Securities Act.
-22-
"redemption date," when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to be
----------------
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed as Exhibit A.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated the date hereof among the Issuers, X.X. Xxxxxx Securities Inc.,
Chase Securities Inc., CIBC Wood Gundy Securities Corp., and First Union Capital
Markets Corp.
"Regulation S" means Regulation S under the Securities Act.
------------
"Related Business" means a cable or broadcast television,
----------------
telecommunications, Internet or data transmission business or a business
reasonably related thereto.
"Restricted Investment" means any Investment other than a Permitted
---------------------
Investment.
"Restricted Physical Security" means a Physical Security containing,
----------------------------
or required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company that has
---------------------
not been designated by the Board of Directors of the Company, by a resolution of
the Board of Directors of the Company delivered to the Trustee, as an
Unrestricted Subsidiary pursuant to Section 4.17. Any such designation may be
revoked by a resolution of the Board of Directors of the Company delivered to
the Trustee, subject to the provisions of such covenant.
"Rule 144" means Rule 144 under the Securities Act.
--------
"Rule 144A" means Rule 144A under the Securities Act.
---------
"SEC" means the Securities and Exchange Commission.
---
"Securities" means the 11 7/8% Senior Discount Notes due 2007, as
----------
amended or supplemented from time to time pursuant to the terms of this
Indenture, that are issued under this Indenture.
-23-
"Securities Custodian" means Colorado National Bank, as custodian with
--------------------
respect to the Securities in global form, or any successor entity thereto.
"Semi-Annual Accrual Date" has the meaning set forth in the definition
------------------------
of Accreted Value.
"Senior Credit Facility" means the Amended and Restated Credit
----------------------
Agreement, dated as of April 9, 1996, between the Company, the lenders named
therein, The Chase Manhattan Bank, as Administrative Agent, X.X. Xxxxxx
Securities Inc., as Syndication Agent, and CIBC Inc., as Managing Agent,
including any deferrals, renewals, extensions, replacements, refinancings or
refundings thereof, or amendments, modifications or supplements thereto and any
agreement providing therefor, whether by or with the same or any other lender,
creditor, group of lenders or group of creditor, and including related notes,
guarantee and security agreements and other instruments and agreements executed
in connection therewith.
"Shelf Registration Statement" has the meaning set forth in the
----------------------------
Registration Rights Agreement.
"Significant Restricted Subsidiary" means, at any date of
---------------------------------
determination, (a) any Restricted Subsidiary that, together with its
Subsidiaries that constitute Restricted Subsidiaries (i) for the most recent
fiscal year of the Company accounted for more than 10.0% of the consolidated
revenues of the Company and the Restricted Subsidiaries or (ii) as of the end of
such fiscal year, owned more than 10.0% of the consolidated assets of the
Company and the Restricted Subsidiaries, all as set forth on the consolidated
financial statements of the Company and the Restricted Subsidiaries for such
year prepared in conformity with GAAP, and (b) any Restricted Subsidiary which,
when aggregated with all other Restricted Subsidiaries that are not otherwise
Significant Restricted Subsidiaries and as to which any event described in
clause (8) of Section 6.01 has occurred, would constitute a Significant
Restricted Subsidiary under clause (a) of this definition.
"Stated Maturity", when used with respect to any Security or any
---------------
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Strategic Equity Investment" means the issuance and sale of Qualified
---------------------------
Equity Interests of the Company for net pro-
-24-
ceeds to the Company of at least $25.0 million to a Person engaged primarily in
the cable television, wireless cable television, telephone, or interactive
television business.
"Subordinated Indebtedness" means any Indebtedness of the Company
-------------------------
which is expressly subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (i) any corporation of
----------
which the outstanding Voting Equity Interests having at least a majority of the
votes entitled to be cast in the election of directors shall at the time be
owned, directly or indirectly, by such Person, or (ii) any other Person of which
at least a majority of Voting Equity Interests are at the time, directly or
indirectly, owned by such first named Person.
"Subsidiary Guarantee" has the meaning set forth in Section 4.19.
--------------------
"Subsidiary Guarantor" means any Subsidiary of the Company that enters
--------------------
into a Subsidiary Guarantee.
"Surviving Person" means, with respect to any Person involved in or
----------------
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
---
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Total Consolidated Indebtedness" means, as at any date of
-------------------------------
determination, an amount equal to the aggregate amount of all Indebtedness and
Disqualified Equity Interests of the Company and the Restricted Subsidiaries
outstanding as of such date of determination.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
-------------
department (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those per formed by the persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust
-25-
matter, any other officer to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Unrestricted Global Securities" means one or more Global Securities
------------------------------
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
--------------------------------
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
-----------------------
required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
-----------------------
designated as such pursuant to Section 4.17. Any such designation may be
revoked by a resolution of the Board of Directors of the Company delivered to
the Trustee, subject to the provisions of Section 4.17.
"UVC Note" means all Indebtedness and other obligations of
--------
FrontierVision Operating Partners, L.P., under that certain Subordinated
Promissory Note dated November 9, 1995 to United Video Cablevision, Inc.
"Voting Equity Interests" means Equity Interests in a corporation or
-----------------------
other Person with voting power under ordinary circumstances entitling the
holders thereof to elect the Board of Directors or other governing body of such
corporation or Person.
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
----------------------------------
all of the outstanding Voting Equity Interests (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company.
-26-
SECTION 1.02. Other Definitions.
-----------------
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.03
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Global Security" 2.01(a)
"144A Global Security" 2.01(a)
"Other Indebtedness" 4.19
"Participants" 2.13
"Paying Agent" 2.03
"Permitted Indebtedness" 4.04
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Restricted Payment" 4.06
"Revocation" 4.17
"Securities Act Legend" 2.06(f)
"United States Government Obligation" 9.01
"Unutilized Net Cash Proceeds" 4.05
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.
-----------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
----------
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Securityholder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" or "obligors" on the indenture securities means the Issuers
------- --------
or any other obligor on the Securities.
-27-
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transac tions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
(a) Global Securities. Securities offered and sold to QIBs in
-----------------
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
---------
the Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to herein as the "144A Global Security." Securities
--------------------
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
---------
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
-----------------------------
initially in accordance with Sections 2.06(b)(iv), 2.06(c)(ii)
-28-
and 2.06(e) in the name of Cede & Co. as nominee of DTC, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The 144A
Global Security, Regulation S Global Security and Unrestricted Global Security
are collectively referred to herein as the "Global Securities." The aggregate
-----------------
Principal Amount at Maturity of each of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
as hereinafter provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate Principal Amount at Maturity of outstanding Securities
from time to time endorsed thereon and that the aggregate Principal Amount at
Maturity of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests therein in accordance with the terms of this Indenture.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the Principal Amount at Maturity of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions
given by the Holder thereof as required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participants'
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Cedel, and indirect Participants.
The Participants shall not have any rights either under this Indenture
or under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Issuers, the Trustee and any agent
of the Issuers or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on the Global Securities
and for all other purposes. Notwithstanding the foregoing, nothing herein
shall prevent the Issuers, the Trustee or any agent of the Issuers or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Participants,
the operation of customary practices of DTC governing the exercise of the
rights of an owner of a beneficial interest in any Global Security.
-29-
The provisions of the "Operating Procedures of the Euroclear System,"
"Terms and Conditions Governing Use of Euroclear," "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel, and successor
provisions, shall be applicable to interests in the Regulation S Global Security
that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to Institutional
-------------------
Accredited Investors who are not also QIBs shall be issued substantially in the
form of Exhibit A hereto, in certificated form and issued in the names of the
---------
purchasers thereof (or their nominees), duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. Securities in
certificated form shall be referred to herein as the "Physical Securities."
-------------------
(c) Securities. The provisions of the form of Securities contained
----------
in Exhibit A hereto are incorporated herein by reference. The Securities and
---------
the Trustee's Certificates of Authentication shall be substantially in the form
of Exhibit A hereto. The Securities may have notations, legends or endorsements
---------
required by law, stock exchange rule or usage. The Issuers shall approve the
form of the Securities and any notation, legend or endorsement (including
notations relating to the Guarantee) on them. If required, the Securities shall
bear the appropriate legend regarding original issue discount for federal income
tax purposes. Each Security shall be dated the date of its authentication. The
terms and provisions contained in the Securities shall constitute, and are
hereby expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers of each of the Issuers shall sign the Securities for each
of the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
-30-
The Trustee shall authenticate (i) Initial Securities for original
issue in the aggregate original Principal Amount at Maturity of up to
$237,650,000 in one or more series, (ii) Private Exchange Securities from time
to time only in exchange for a like Principal Amount at Maturity of Initial
Global Securities as of the date of such exchange and (iii) Unrestricted
Securities from time to time only (x) in exchange for a like Principal Amount at
Maturity of Initial Securities as of the date of such exchange or (y) in an
aggregate Principal Amount at Maturity as of the date of authentication of not
more than the excess of $237,650,000 (reduced, if the Cash Interest Election is
made, by the aggregate unaccreted portion of the Accreted Value of all
Securities then outstanding which would have accreted if no Cash Interest
Election had been made) over the sum of the aggregate Principal Amount at
Maturity as of the date of authentication of (A) Initial Securities then
outstanding, (B) Private Exchange Securities then outstanding and (C)
Unrestricted Securities issued in accordance with clause (iii)(x), in each case
upon a written order signed by an Officer of each of the Issuers. The order
shall specify the amount of Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated. The order shall also
provide instructions concerning registration, amounts for each Holder and
delivery. The aggregate Principal Amount at Maturity of Securities outstanding
at any time may not exceed $237,650,000 (reduced, if the Cash Interest Election
is made, by the aggregate unaccreted portion of the Accreted Value of all
Securities then outstanding which would have accreted if no Cash Interest
Election had been made) except as provided in Section 2.07. The Securities
shall be issued only in registered form, without coupons and only in
denominations of $1,000 Principal Amount at Maturity and any integral multiple
thereof.
SECTION 2.03. Registrar; Paying Agent; Depository.
-----------------------------------
The Issuers shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Securities may be presented for payment ("Paying Agent").
------------
The Issuers may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Issuers shall notify the Trustee of
-31-
the name and address of any such Agent. If the Issuers fail to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.07.
The Issuers initially appoint the Trustee as Registrar and Paying
Agent. The Issuers shall give written notice to the Trustee in the event that
either of the Issuers decides to act as Registrar or Paying Agent.
The Issuers initially appoint DTC to act as Depository with respect to
any Global Securities and initially appoint the Trustee to act as Securities
Custodian with respect to any Global Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
The Issuers shall require each Paying Agent to agree in writing to
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal or Accreted Value of or
interest on the Securities (whether such money has been paid to it by the
Issuers or any other obligor on the Securities), and the Issuers and the Paying
Agent shall each notify the Trustee of any default by either of the Issuers (or
any other obligor on the Securities) in making any such payment. If either of
the Issuers or a Subsidiary of either of the Issuers acts as Paying Agent, it
shall segregate the money and hold it as a separate trust fund. The Issuers at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent
shall have no further liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Issuers shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
-32-
SECTION 2.06. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Securities. Transfer of the
------------------------------------------
Global Securities shall be by delivery. Global Securities will be exchanged by
the Issuers for Physical Securities only (i) if DTC notifies the Issuers that
it is unwilling or unable to continue to act as depositary with respect to the
Global Securities or ceases to be a clearing agency registered under the
Exchange Act and, in either case, a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by the Issuers within
120 days, (ii) at any time if the Issuers in their sole discretion determine
that the Global Securities (in whole but not in part) should be exchanged for
Physical Securities or (iii) if the owner of an interest in the Global
Securities requests such Physical Securities, following an Event of Default
under this Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee in writing and the Trustee shall cause the aggregate
Principal Amount at Maturity of the applicable Global Security to be reduced
accordingly and direct DTC to make a corresponding reduction in its book-entry
system. The Issuers shall execute and the Trustee shall authenticate and make
available for delivery to the Person designated in the instructions a Physical
Security in the appropriate Principal Amount at Maturity. The Trustee shall
make available for delivery such Physical Securities to the Persons in whose
names such Securities are so registered. Physical Securities issued in exchange
for an Initial Global Security pursuant to this Section 2.06(a) shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained therein. Global Securities may also be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10. Every Security
authenticated and made available for delivery in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to Section 2.07 or 2.10, shall
be authenticated and made available for delivery in the form of, and shall be, a
Global Security. A Global Security may not be exchanged for another Security
other than as provided in this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities. The
-------------------------------------------------------
transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
-33-
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers
of interests in Global Securities shall also require compliance with
subparagraph (i) below, as well as one or more of the other following
subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Securities.
-------------------------------------------------------------
In connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the same
Global Security), the transferor of such interest must deliver to the
Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC to
credit or cause to be credited an interest in the specified Global Security
in an amount equal to the interest to be transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase and (3) instructions given by the Holder of the Global
Security to effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security.
---------------------------------------------------------
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in Section
2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Security.
--------------------------------------------------------
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an
interest in the 144A Global Security, then the transferor must deliver
a certificate in the form of Exhibit C hereto, including the
---------
certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Security, then the transferor
must deliver a certificate in the form of Exhibit C hereto, including
---------
the certifications in item 2 thereof.
-34-
(iv) Transfer and Exchange of Interests in Initial Global Security for
-----------------------------------------------------------------
Interests in an Unrestricted Global Security. Interests in any Initial
--------------------------------------------
Global Security may be exchanged by the holder thereof for an interest in
the Unrestricted Global Security or transferred to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global
Security proposes to exchange it for an interest in the
Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit D hereto, including the certifications in
---------
item 1(a) thereof;
(2) if the holder of such an interest in an Initial Global
Security proposes to transfer it to a Person who shall take
delivery thereof in the form of an interest in an Unrestricted
Global Security, a certificate in the form of Exhibit C hereto,
---------
including the certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Issuers,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required
in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Issuers
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted
Global Securities in an aggregate Principal Amount at Matu-
-35-
rity equal to the Principal Amount at Maturity of interests in the Initial
Global Security transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests Among Global
-------------------------------------------------------------
Securities. Upon satisfaction of the requirements for transfer of
----------
interests in Global Securities pursuant to clauses (iii) or (iv) above,
the Trustee, as Registrar, shall reduce or cause to be reduced the
aggregate Principal Amount at Maturity of the relevant Global Security from
which the interests are being transferred, and increase or cause to be
increased the aggregate Principal Amount at Maturity of the Global Security
to which the interests are being transferred, in each case, by the
Principal Amount at Maturity so transferred and shall direct DTC to make
corresponding adjustments in its book-entry system. No transfer of
interests of a Global Security shall be effected until, and any transferee
pursuant thereto shall succeed to the rights of a holder of such interests
only when, the Registrar has made appropriate adjustments to the
applicable Global Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
--------------------------------------------------------------
Global Security.
---------------
(i) If any Holder of Physical Securities required to contain the
Securities Act Legend proposes to exchange such Securities for an interest
in a Global Security or to transfer such Physical Securities to a Person
who takes delivery thereof in the form of an interest in a Global Security,
then, upon receipt by the Registrar of the following documentation (all of
which may be submitted by facsimile):
(A) if the Holder of such Physical Registered Securities proposes
to exchange such Securities for an interest in an Initial Global
Security, a certificate from such Holder in the form of Exhibit D
---------
hereto, including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit C hereto, including the
---------
certifications in item 1 thereof; or
(C) if such Physical Securities are being transferred to a Non-
U.S. Person (as defined in Regulation S) in an offshore transaction in
accordance with
-36-
Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item 2
---------
thereof,
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate Principal Amount at Maturity of, in the case of
clause (B) above, the 144A Global Security or, in the case of clause (C)
above, the Regulation S Global Security, and direct DTC to make a
corresponding increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) upon receipt by the Registrar of the following documentation
(all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for an interest in the Unrestricted
Global Security, a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in item 1(b)
---------
thereof;
(2) if the Holder of such Registered Securities proposes to
transfer such Securities to a Person who shall take delivery
thereof in the form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit C hereto,
---------
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Issuers,
to the effect
-37-
that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in Section 2.06(f) hereof are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above
at a time when an Unrestricted Global Security has not yet been
issued, the Issuers shall issue and, upon receipt of an authentication
order in accordance with Section 2.02, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate Principal
Amount at Maturity equal to the Principal Amount at Maturity of
Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
--------------------------------------------
(i) Transfer of a Physical Security to Another Physical Security.
------------------------------------------------------------
Following the occurrence of one or more of the events specified in Section
2.06(a), a Physical Security may be transferred to Persons who take
delivery thereof in the form of another Physical Security if the Registrar
receives the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including the
---------
certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including the
---------
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Securities for
-----------------------------------------------------------
Unrestricted Physical Securities. Following the occurrence of one or more
--------------------------------
of the events specified in Section 2.06(a), a Restricted Physical Security
may be exchanged by the Holder thereof for an Unrestricted Physical
Security or transferred to a Person who takes delivery thereof in the form
of an Unrestricted Physical Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
-38-
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives a certificate from such holder in the
form of Exhibit D hereto, including the certifications in item 1(c)
---------
thereof and an Opinion of Counsel in form reasonably acceptable to the
Issuers, to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities
-------------------------------
are presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal Principal Amount at
Maturity of Physical Securities of other authorized denominations, the
Registrar shall make the exchange as requested only if the Physical
Securities are endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Registrar duly executed by such Holder or by
his attorney duly authorized in writing and shall be issued only in the
name of such Holder or its nominee. The Physical Securities issued in
exchange for Physical Securities shall bear the Securities Act Legend and
shall be subject to all restrictions on transfer contained herein in each
case to the same extent as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer
-----------------------------
pursuant to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate Principal Amount at Maturity of
Securities in excess of that to be transferred, the Issuers shall execute
and the Trustee shall authenticate and make available for delivery to the
Holder of such Security, without service charge, a new Physical Security or
Securities of any authorized denomination requested by the Holder, in an
aggregate Principal Amount at Maturity equal to the portion of the Security
not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
--------------
defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Issuers shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
Principal
-39-
Amount at Maturity equal to the Principal Amount at Maturity of the interests in
the Initial Global Securities tendered for acceptance (and not withdrawn) by
persons participating therein. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate Principal Amount at Maturity
of the applicable Initial Global Securities to be reduced accordingly and direct
DTC to make a corresponding reduction in its book-entry system. The Trustee
shall cancel any Restricted Physical Certificates in accordance with Section
2.11 hereof.
In the case that one or more of the events specified in Section
2.06(a) have occurred, upon the occurrence of such Exchange Offer, the Issuers
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate Unrestricted Physical Securities in
an aggregate Principal Amount at Maturity equal to the Principal Amount at
Maturity of the Restricted Physical Securities tendered for acceptance by
persons participating therein.
(f) Legends. Each Initial Global Security and each Restricted
-------
Physical Security shall bear the legend (the "Securities Act Legend") in
---------------------
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE REOFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT OR (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT,
(2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER
-40-
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend
----------------------
in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE
OF DTC, OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE COMPANY 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such
----------------------------------------------------
time as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities 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 interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the Principal Amount at
Maturity of Securities represented by such Global Security shall be reduced
accord accordingly and an endorsement shall be made on such Global Security, by
the Trustee to reflect such reduction.
-41-
(i) General Provisions Relating to All Transfers and Exchanges.
----------------------------------------------------------
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global Securities
and Physical Securities upon a written order signed by an Officer of each
of the Issuers or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.05, 4.14 and 10.05
hereof).
(iii) All Global Securities and Physical Securities issued upon
any registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Physical Securities surrendered upon such registration
of transfer or exchange.
(iv) The Issuers shall not be required (A) to issue, to register
the transfer of or to exchange Securities during a period beginning at the
opening of 15 Business Days before the day of any mailing of notice of
redemption of Securities under Section 3.02 and ending at the close of
business on the day of such mailing, (B) to register the transfer of or to
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part or (C)
to register the transfer of or to exchange a Security between a record date
and the next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Issuers may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal or
Accreted Value of and interest on such Securities and for all other
purposes, and none of the Trustee, any Agent or the Issuers shall be
affected by notice to the contrary.
-42-
(vi) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfers of any interest in any Security (including any transfers between
or among Participants or beneficial owners of interests in any Global
Security) or Physical Security other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuers shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Issuers and the Trustee to protect the
Issuers, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced may be required by the Trustee or the Issuers. The
Issuers and the Trustee each may charge such Holder for its expenses in
replacing such Security.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
Except as provided in paragraph 5(b) of the Securities, a Security does not
cease to be outstanding because either of the Issuers or an Affiliate of either
of the Issuers holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than either of the Issuers, a Subsidiary of
either of the Issuers or an Affiliate of either of the Issuers) holds on a
redemption date or Maturity Date money
-43-
sufficient to pay the principal or Accreted Value of, and interest, if any, on
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and Accreted Value ceases to accrete or interest on them
ceases to accrue, as the case may be.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required Principal Amount at
Maturity of Securities have concurred in any direction, waiver or consent,
Securities owned by either of the Issuers, any Subsidiary Guarantor or any of
their respective Affiliates shall be disregarded, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the Trustee actually knows
are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Issuers may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuers consider appropriate for temporary Securities.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
------------
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. Except as provided in Section 2.07, the
Issuers may not issue new Securities to replace, or reissue or resell,
Securities which the Issuers have redeemed, paid, purchased on the open market
or otherwise, or otherwise acquired or have been delivered to the Trustee for
cancellation. The Trustee (subject to the record-retention requirements of the
Exchange Act) may, but shall not be required to destroy canceled Securities.
-44-
SECTION 2.12. Defaulted Interest.
------------------
If the Issuers default in a payment of interest on the Securities,
they shall pay the defaulted interest, plus any interest payable on the
defaulted interest pursuant to Section 4.01 hereof, to the persons who are
Securityholders on a subsequent special record date, and such term, as used in
this Section 2.12 with respect to the payment of any defaulted interest, shall
mean the fifteenth day next preceding the date fixed by the Issuers for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Issuers shall mail to each
Security holder and to the Trustee a notice that states such special record
date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.13. Payments of Interest.
--------------------
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
to receive the interest payable on such Interest Payment Date notwithstanding
any transfer or exchange of such Physical Security subsequent to the regular
record date and prior to such Interest Payment Date, except if and to the extent
the Issuers shall default in the payment of the interest due on such Interest
Payment Date, in which case such defaulted interest shall be paid in accordance
with Section 2.12; and in the event of an exchange of a Physical Security for a
beneficial interest in any Global Security subsequent to a regular record date
or any special record date and prior to or on the related Interest Payment Date
or other payment date under Section 2.12, any payment of the interest payable on
such payment date with respect to any such Physical Security shall be made to
the Person in whose name such Physical Security was registered on such record
date. Payments of interest on the Global Securities will be made on each
Interest Payment Date to the Holder of the Global Security on the record date
with respect thereto; provided, however, that, in the event of an exchange of
-------- -------
all or a portion of a Global Security for a Physical Security subsequent to the
regular record date or any special record date and prior to or on the related
Interest Payment Date or other payment date under Section 2.12, any payment of
interest payable on such Interest Payment Date or other payment date with
respect to the Physical Security shall be made to the Holder of the Global
Security as of the applicable record date.
(b) Subject to Section 4.01, interest shall be paid to DTC, with
respect to any Global Security held by DTC, on the
-45-
applicable Interest Payment Date in accordance with instructions received from
DTC at least five Business Days before the applicable Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Issuers are to effect the redemption of any Securities pursuant
to paragraph 5 of the Securities at the applicable redemption price set forth
therein, they shall notify the Trustee in writing of the redemption date and the
Principal Amount at Maturity of Securities to be redeemed.
The Issuers shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing), together with an Officers' Certificate
stating that such redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
---
rata or by lot or in such other manner as the Trustee shall deem appropriate and
----
fair. The Trustee shall make the selection from the Securities then outstanding,
subject to redemption and not previously called for redemption. The Trustee may
select for redemption portions of the Principal Amount at Maturity of Securities
but only such that no unredeemed Security shall be in a denomination of less
than $1,000 Principal Amount at Maturity. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a redemption date,
the Issuers shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
-46-
(2) the redemption price;
(3) the CUSIP number;
(4) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Issuers default in making the redemption payment,
Accreted Value on Securities called for redemption ceases to accrete and
interest on Securities called for redemption ceases to accrue on and after
the redemption date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender of such Securities
to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
Principal Amount at Maturity of such Security to be redeemed and that,
after the redemption date, upon surrender of such Security, a new Security
or Securities in Principal Amount at Maturity equal to the unredeemed
portion thereof will be issued.
At the Issuers' request, the Trustee shall give the notice of
redemption on behalf of the Issuers, in the Issuers' name and at the Issuers'
expense.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon, if any, to the redemption date.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
At least one Business Day before the redemption date, the Issuers
shall deposit with the Paying Agent (or if either of the Issuers is the Paying
Agent, such Issuer shall, on or before the redemption date, segregate and hold
in trust) money sufficient to pay the redemption price of and accrued and
unpaid interest, if any, on all Securities to be redeemed on that date other
than Securities or portions thereof called for redemption
-47-
on that date which have been delivered by the Issuers to the Trustee for
cancellation.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in Principal Amount at
Maturity to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Issuers shall pay the Accreted Value or principal of and interest
on the Securities in the manner provided in the Securities. An installment of
Accreted Value, principal or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of the Issuers) holds on that date money designated for and sufficient
to pay the installment in full and is not prohibited from paying such money to
the Holders of the Securities pursuant to the terms of this Indenture.
The Issuers shall pay cash interest on overdue Accreted Value or
principal at 11 7/8%. The Issuers shall pay interest on overdue installments of
interest at 11 7/8%, to the extent lawful.
Payments of the Accreted Value or principal of and interest on any
Global Securities will be made to the Depository or its nominee, as the case may
be, as the registered owner thereof. None of the Issuers, the Trustee nor any
Paying Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in any Global Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interest.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Issuers shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Issuers in respect of the Securities and this
Indenture may
-48-
be served. The Issuers shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Issuers may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
--------
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuers shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 4.03. Limitation on Transactions with
Affiliates and Related Persons.
-------------------------------
The Company will not, and will not permit, cause or suffer any
Restricted Subsidiary to, directly or indirectly, conduct any business or enter
into any transaction (or series of related transactions) with or for the benefit
of any of their respective Affiliates or any beneficial holder of 10% or more of
the Equity Interests of the Company or any officer, director or employee of the
Company or any Restricted Subsidiary (each an "Affiliate Transaction"), unless
---------------------
(a) such Affiliate Transaction is on terms which are no less favorable to the
Company or such Restricted Subsidiary, as the case may be, than would be avail
able in a comparable transaction with an unaffiliated third party, (b) if such
Affiliate Transaction (or series of related Affiliate Transactions) involves
aggregate payments or other consideration having a Fair Market Value in excess
of $5.0 million, a majority of the disinterested members of the Board of
Directors of the Company shall have approved such transaction and determined
that such transaction complies with the foregoing provisions and (c) if such
Affiliate Transaction (or series of related Affiliate Transactions) involves
aggregate payments or other consideration having a Fair Market Value of $25.0
million or more, the Company shall have obtained a written opinion from an
Independent Financial Advisor stating that the consideration to be paid or
received, as the case may be, by the Company or the Restricted Subsidiary
pursuant to such Affiliate Transaction is fair to the Company or the Restricted
Subsidiary, as the case may be, from a financial point of view.
-49-
Notwithstanding the foregoing, the restrictions set forth in this
Section 4.03 shall not apply to (i) transactions with or among the Company and
the Wholly Owned Restricted Subsidiaries, (ii) customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the
Company entered into in the ordinary course of business (including customary
benefits thereunder) and payments under any indemnification arrangements
permitted by applicable law, (iii) the Agreement of Limited Partnership of the
Company or the Agreement of Limited Partnership of FVOP, in each case, as in
effect on the Issue Date, including any amendment or extension thereof that does
not otherwise violate any other covenant set forth in this Indenture, and any
transactions undertaken pursuant to any other contractual obligations in
existence on the Issue Date (as in effect on the Issue Date), (iv) the issue and
sale by the Company to its partners or stockholders of Qualified Equity
Interests, (v) any Restricted Payments made in compliance with Section 4.06
(including without limitation the making of any payments or distributions
permitted to be made in accordance with clauses (i) through (vi) of the
penultimate paragraph of Section 4.06), (vi) loans and advances to officers,
directors and employees of the Company and the Restricted Subsidiaries for
travel, entertainment, moving and other relocation expenses, in each case made
in the ordinary course of business and consistent with past business practices,
(vii) customary commercial banking, investment banking, underwriting, placement
agent or financial advisory fees paid in connection with services rendered to
the Company and its Subsidiaries in the ordinary course, (viii) the Incurrence
of intercompany Indebtedness permitted pursuant to clause (d) under the
definition of "Permitted Indebtedness" set forth in Section 4.04, (ix) the
pledge of Equity Interests of Unrestricted Subsidiaries to support the
Indebtedness thereof and (x) the Senior Credit Facility.
SECTION 4.04. Limitation on Indebtedness.
--------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, Incur any Indebtedness (including Acquired
Indebtedness) or issue any Disqualified Equity Interests except for Permitted
Indebtedness; provided, however, that the Company or any Restricted Subsidiary
-------- -------
may Incur Indebtedness and the Company or any Restricted Subsidiary may issue
Disqualified Equity Interests if, at the time of and immediately after giving
pro forma effect to such Incurrence of Indebtedness or issuance of Disqualified
Equity Interests and the application of the proceeds therefrom, the Debt to
Operating Cash
-50-
Flow Ratio would be less than or equal to (i) 8.0 to 1.0 if the date of such
Incurrence is on or before December 31, 1998 and (ii) 7.50 to 1.0 thereafter.
The foregoing limitations will not apply to the Incurrence of any of
the following (collectively, "Permitted Indebtedness"), each of which shall be
----------------------
given independent effect:
(a) Indebtedness under the Securities and this Indenture;
(b) Indebtedness and Disqualified Equity Interests of the Company and
the Restricted Subsidiaries outstanding on the Issue Date (including
Indebtedness under the FVOP Indenture and the UVC Note);
(c) Indebtedness of the Company and the Restricted Subsidiaries under
the Senior Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed the sum of (A) $650.0 million, which amount shall
be reduced by (x) any permanent reduction of commitments thereunder and (y)
any other repayment accompanied by a permanent reduction of commitments
thereunder (other than, in the case of either clause (x) or (y), in
connection with any refinancing thereof), plus (B) any amounts outstanding
----
under the Senior Credit Facility that utilize subparagraph (i) of this
paragraph of Section 4.04;
(d) (x) Indebtedness of any Restricted Subsidiary owed to and held by
the Company or any Wholly Owned Restricted Subsidiary and (y) Indebtedness
of the Company owed to and held by any Wholly Owned Restricted Subsidiary
which is unsecured and subordinated in right of payment to the payment and
performance of the Issuers' obligations under this Indenture and the
Securities; provided, however, that an Incurrence of Indebtedness that is
-------- -------
not permitted by this clause (d) shall be deemed to have occurred upon (i)
any sale or other disposition of any Indebtedness of the Company or a
Wholly Owned Restricted Subsidiary referred to in this clause (d) to a
Person (other than the Company or a Wholly Owned Restricted Subsidiary),
(ii) any sale or other disposition of Equity Interests of a Wholly Owned
Restricted Subsidiary which holds Indebtedness of the Company or another
Wholly Owned Restricted Subsidiary such that such Wholly Owned Restricted
Subsidiary ceases to be a Wholly Owned Restricted Subsidiary or (iii)
designation of a Wholly Owned Restricted Subsidiary which holds
Indebtedness of the Company as an Unrestricted Subsidiary;
-51-
(e) guarantees by any Restricted Subsidiary of Indebtedness of the
Company;
(f) Interest Rate Protection Obligations of the Company or any
Restricted Subsidiary relating to Indebtedness of the Company or such
Restricted Subsidiary, as the case may be (which Indebtedness (i) bears
interest at fluctuating interest rates and (ii) is otherwise permitted to
be Incurred under this Section 4.04); provided, however, that the notional
-------- -------
principal amount of such Interest Rate Protection Obligations does not
exceed the principal amount of the Indebtedness to which such Interest Rate
Protection Obligations relate;
(g) Purchase Money Indebtedness and Capitalized Lease Obligations of
the Company or any Restricted Subsidiary which do not exceed $10.0 million
in the aggregate at any one time outstanding;
(h) Indebtedness or Disqualified Equity Interests of the Company or
any Restricted Subsidiary to the extent representing a replacement,
renewal, refinancing or extension (collectively, a "refinancing") of
-----------
outstanding Indebtedness or Disqualified Equity Interests of the Company
or any Restricted Subsidiary Incurred in compliance with the Debt to
Operating Cash Flow Ratio of the first paragraph of this Section 4.04 or
clause (a) or (b) of this paragraph of this Section 4.04; provided,
--------
however, that (i) Indebtedness or Disqualified Equity Interests of the
-------
Company may not be refinanced under this clause (h) with Indebtedness or
Disqualified Equity Interests of any Restricted Subsidiary, (ii) any such
refinancing shall not exceed the sum of the principal amount (or, if such
Indebtedness or Disqualified Equity Interests provide for a lesser amount
to be due and payable upon a declaration of acceleration thereof at the
time of such refinancing, an amount no greater than such lesser amount) of
the Indebtedness or Disqualified Equity Interests being refinanced plus the
amount of accrued inter est or dividends thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
refinancing and such reasonable fees and expenses incurred in connection
therewith, (iii) Indebtedness representing a refinancing of Indebtedness of
the Company shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness
being refinanced, and (iv) Subordinated Indebtedness of the Company or
Disqualified Equity Interests of the Company may
-52-
only be refinanced with the Subordinated Indebtedness of the Company or
Disqualified Equity Interests of the Company; and
(i) in addition to the items referred to in clauses (a) through (h)
above, Indebtedness of the Company (including any Indebtedness under the
Senior Credit Facility that utilizes this subparagraph (i)) having an
aggregate principal amount not to exceed $25.0 million at any time
outstanding.
SECTION 4.05. Disposition of Proceeds of Asset Sales.
--------------------------------------
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, make any Asset Sale, unless (i) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of and (ii) either (A) at least
75% of such consideration consists of cash or Cash Equivalents or (B) at least
75% of such consideration consists of (x) properties and capital assets
(including franchises and licenses required to own or operate such properties)
to be used in the same lines of business being conducted by the Company or any
Restricted Subsidiary at such time or (y) Equity Interests in one or more
Persons which thereby become Wholly Owned Restricted Subsidiaries whose assets
consist primarily of such properties and capital assets. The amount of any (i)
liabilities of the Company or any Restrict ed Subsidiary that are actually
assumed by the transferee in such Asset Sale and from which the Company and the
Restricted Subsidiaries are fully released shall be deemed to be cash for
purposes of determining the percentage of cash consideration received by the
Company or the Restricted Subsidiaries and (ii) notes or other similar
obligations received by the Company or the Restricted Subsidiaries from such
transferee that are immediately converted (or are converted within thirty days
of the related Asset Sale) by the Company or the Restricted Subsidiaries into
cash shall be deemed to be cash, in an amount equal to the net cash proceeds
realized upon such conversion, for purposes of determining the percentage of
cash consideration received by the Company or the Restricted Subsidiaries.
The Company or such Restricted Subsidiary, as the case may be, may (i)
apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof
to repay (x) Indebtedness of the Company secured by a Lien on the property or
assets subject to such Asset Sale or (y) Indebtedness of any Restricted
Subsidiary and, in each case permanently reduce any related commitment;
provided, however, that if Indebtedness under the
-------- -------
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revolving credit portion of the Senior Credit Facility is repaid, the Company
need not reduce the commitments for such revolving credit portion, or (ii)
commit in writing to acquire, construct or improve properties and capital assets
(including franchises and licenses required to own or operate any such assets or
properties) to be used in the same line of business being conducted by the
Company or any Restricted Subsidiary at such time and so apply such Net Cash
Proceeds within 365 days of the receipt thereof.
To the extent all or part of the Net Cash Proceeds of any Asset Sale
are not so applied within 365 days of such Asset Sale (such Net Cash Proceeds,
the "Unutilized Net Cash Proceeds"), the Company shall, within 30 days of such
----------------------------
365th day, make an Offer to Purchase from all Holders of Securities with an
aggregate Accreted Value as of such Purchase Date equal to such Unutilized Net
Cash Proceeds, at a purchase price in cash equal to 100% of such Accreted Value
thereof plus accrued and unpaid interest, if any, to the applicable Purchase
Date; provided, however, that the Offer to Purchase may be deferred until there
-------- -------
are aggregate Unutilized Net Cash Proceeds equal to or in excess of $5.0
million, at which time the entire amount of such Unutilized Net Cash Proceeds,
and not just the amount in excess of $5.0 million, shall be applied as required
pursuant to this paragraph. In the event that any other Indebtedness of the
Company which ranks pari passu with the Securities requires the repayment or
---- -----
prepayment thereof, or an offer to purchase to be made to repurchase such
Indebtedness, upon the consummation of any Asset Sale, the Company may apply
the Unutilized Net Cash Proceeds otherwise required to be applied to an Offer
to Purchase to repay, prepay or offer to purchase such other Indebtedness and
to an Offer to Purchase pro rata based upon (i) the aggregate Accreted Value of
--- ----
the Securities then outstanding on the applicable Purchase Date and (ii) the
aggregate principal amount (or accreted amount, if less) of such other
Indebtedness then outstanding on such Purchase Date. The Offer to Purchase
shall remain open for a period of 20 Business Days or such longer period as may
be required by law. To the extent the aggregate Accreted Value of Securities
tendered pursuant to the Offer to Purchase exceeds the Unutilized Net Cash
Proceeds, Securities shall be purchased among Holders on a proportionate basis
(based on the relative aggregate Accreted Value of Securities validly tendered
for purchase by Holders thereof). To the extent the Unutilized Net Cash
Proceeds exceed the aggregate Accreted Value of Securities tendered by the
Holders of the Securities pursuant to the Offer to Purchase, the Company may
retain and utilize any portion of the Unutilized Net
-54-
Cash Proceeds not applied to repurchase the Securities for any purpose
consistent with the other terms of this Indenture.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act and any violation of the provisions of this
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
(b) The Company will mail the Offer for an Offer to Purchase
required pursuant to Section 4.05(a) not more than 395 days after consummation
of the Asset Sale resulting in the Offer to Purchase. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any portion
of a Security not tendered must be in an integral multiple of $1,000 Principal
Amount at Maturity and subject to any proration of the Offer among tendering
Holders.
(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 4.05, the Company shall deliver to the Trustee
an Officers' Certificate as to the Purchase Amount.
On or prior to the Purchase Date specified in the Offer to Purchase,
the Company shall (i) accept for payment (on a pro rata basis, if necessary)
Securities or portions thereof validly tendered pursuant to such Offer,
(ii) deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.04) money
sufficient to pay the Purchase Price of all Securities or portions thereof so
accepted and (iii) deliver or cause to be delivered to the Trustee for
cancellation all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
The Paying Agent (or the Company, if so acting) shall promptly mail or deliver
to Holders of Securities so accepted payment in an amount equal to the Purchase
Price for such Securities, and the Trustee shall promptly authenticate and mail
or deliver to each Holder a new Security or Securities equal in Principal Amount
at Maturity to any unpurchased portion of the Security surrendered as requested
by the Holder. Any Security not accepted for payment shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
-55-
announce the results of the Offer on or as soon as practicable after the
Purchase Date.
SECTION 4.06. Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly,
(i) declare or pay any dividend or any other distribution on any
Equity Interests of the Company or any Restricted Subsidiary or make any
payment or distribution to the direct or indirect holders (in their
capacities as such) of Equity Interests of the Company or any Restricted
Subsidiary (other than payments or distributions made to the Company or a
Wholly Owned Restricted Subsidiary and dividends or distributions payable
solely in Qualified Equity Interests of the Company or in options, warrants
or other rights to purchase Qualified Equity Interests of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any Restricted Subsidiary (other than
any such Equity Interests owned by the Company or a Wholly Owned Restricted
Subsidiary);
(iii) purchase, redeem, defease or retire for value more than one
year prior to the stated maturity thereof any Subordinated Indebtedness of
the Company (other than any such Subordinated Indebtedness held by a Wholly
Owned Restricted Subsidiary); or
(iv) make any Investment (other than Permitted Investments) in
any Person (other than in the Company, a Wholly Owned Restricted Subsidiary
or a Person that becomes a Wholly Owned Restricted Subsidiary, or is merged
with or into or consolidated with the Company or a Wholly Owned Restricted
Subsidiary (provided the Company or a Wholly Owned Restricted Subsidiary is
the survivor), as a result of or in connection with such Investment)
(such payments or any other actions (other than Permitted Investments)
described in (i), (ii), (iii) and (iv) collectively, "Restricted Payments"),
-------------------
unless
(a) no Default or Event of Default shall have occurred and be
continuing at the time or after giving effect to such Restricted Payment;
-56-
(b) immediately after giving effect to such Restricted Payment, the
Company would be able to Incur $1.00 of Indebtedness (other than Permitted
Indebtedness) under the Debt to Operating Cash Flow Ratio of the first
paragraph of Section 4.04; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after
the Issue Date does not exceed an amount equal to the sum of (1) the
difference between (x) the Cumulative Available Cash Flow determined at the
time of such Restricted Payment and (y) 140% of cumulative Consolidated
Interest Expense of the Company determined for the period commencing on the
Issue Date and ending on the last day of the latest fiscal quarter for
which consolidated financial statements of the Company are available
preceding the date of such Restricted Payment, plus (2) the aggregate net
----
proceeds (with the value of any non-cash proceeds to be the Fair Market
Value thereof as determined by an Independent Financial Advisor) received
by the Company either (x) as capital contributions to the Company after the
Issue Date or (y) from the issue and sale (other than to a Restricted
Subsidiary) of its Qualified Equity Interests after the Issue Date
(excluding the net proceeds from any issuance and sale of Qualified Equity
Interests financed, directly or indirectly, using funds borrowed from the
Company or any Restricted Subsidiary until and to the extent such borrowing
is repaid), plus (3) the principal amount (or accrued or accreted amount,
----
if less) of any Indebtedness of the Company or any Restricted Subsidiary
Incurred after the Issue Date which has been converted into or exchanged
for Qualified Equity Interests of the Company, plus (4) in the case of the
----
disposition or repayment of any Investment constituting a Restricted
Payment made after the Issue Date, an amount (to the extent not included in
the computation of Cumulative Available Cash Flow) equal to the lesser of:
(i) the return of capital with respect to such Investment and (ii) the
amount of such Investment which was treated as a Restricted Payment, in
either case, less the cost of the disposition of such Investment, plus (5)
----
the Company's proportionate interest in the lesser of the Fair Market
Value or the net worth of any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary after the Issue Date in accordance
with Section 4.17 not to exceed in any case the Designation Amount with
respect to such Restricted Subsidiary upon its Designation, minus (6) the
-----
Designation Amount with respect to any Subsidiary of the Company which has
been designated
-57-
as an Unrestricted Subsidiary after the Issue Date in accordance with
Section 4.17.
The foregoing provisions will not prevent (i) the payment of any dividend or
distribution on, or redemption of, Equity Interests within 60 days after the
date of declaration of such dividend or distribution or the giving of formal
notice of such redemption, if at the date of such declaration or giving of
formal notice such payment or redemption would comply with the provisions of
this Indenture; (ii) so long as no Default or Event of Default shall have
occurred and be continuing, the retirement of any Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially
concurrent issue and sale (other than to a Restricted Subsidiary) of, Qualified
Equity Interests of the Company; provided, however, that any such net cash
-------- -------
proceeds and the value of any Equity Interests issued in exchange for such
retired Equity Interests are excluded from clause (c)(2) of the preceding
paragraph (and were not included therein at any time); (iii) so long as no
Default or Event of Default shall have occurred and be continuing, the purchase,
redemption, retirement or other acquisition of Subordinated Indebtedness of the
Company made in exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale (other than to a Restricted Subsidiary)
of (x) Qualified Equity Interests of the Company; provided, however, that any
-------- -------
such net cash proceeds and the value of any Equity Interests issued in exchange
for Subordinated Indebtedness of the Company are excluded from clauses (c)(2)
and (c)(3) of the preceding paragraph (and were not included therein at any
time) or (y) other Subordinated Indebtedness of the Company having no stated
maturity for the payment of principal thereof prior to the final stated maturity
of the Securities; (iv) the payment of any dividend or distribution on Equity
Interests of the Company or any Restricted Subsidiary to the extent necessary
to permit the direct or indirect beneficial owners of such Equity Interests to
pay federal and state income tax liabilities arising from income of the Company
or such Restricted Subsidiary and attributable to them solely as a result of the
Company or such Restricted Subsidiary (and any intermediate entity through which
such holder owns such Equity Interests) being a partnership or similar pass-
through entity for federal income tax purposes; (v) so long as no Default or
Event of Default has occurred and is continuing, any Investment made out of the
net cash proceeds of the substantially concurrent issue and sale (other than to
a Restricted Subsidiary) of Qualified Equity Interests of the Company;
provided, however, that any such net cash proceeds are excluded from clause
-------- -------
(c)(2) of the preceding paragraph (and were not included therein at any time);
(vi) the purchase, redemption or other acquisition, cancellation
-58-
or retirement for value of Equity Interests, or options, warrants, equity
appreciation rights or other rights to purchase or acquire Equity Interests, of
the Company or any Restricted Subsidiary, or similar securities, held by
officers or employees or former officers or employees of the Company or any
Restricted Subsidiary (or their estates or beneficiaries under their estates),
upon death, disability, retirement or termination of employment, not to exceed
$2.0 million in any calendar year; (vii) the payment of any dividend or
distribution on Equity Interests of a Restricted Subsidiary out of such
Restricted Subsidiary's net income from the Issue Date to Persons other than the
Company or a Restricted Subsidiary; provided that such dividend or distribution
--------
is paid pro rata to all holders of such Equity Interests; (viii) Investments in
--- ----
Persons (including, without limitation, Restricted Subsidiaries which are not
Wholly Owned Restricted Subsidiaries and Unrestricted Subsidiaries) engaged in a
Related Business, not to exceed $30.0 million at any one time outstanding; and
(ix) Permitted Strategic Investments.
In determining the amount of Restricted Payments permissible under
this Section 4.06, amounts expended pursuant to clauses (i), (vi) and (ix) of
the immediately preceding paragraph shall be included as Restricted Payments and
amounts expended pursuant to clauses (ii) through (v) and (vii) and (viii) shall
be excluded. The amount of any non-cash Restricted Payment shall be deemed to
be equal to the Fair Market Value thereof at the date of the making of such
Restricted Payment.
SECTION 4.07. Corporate Existence.
-------------------
Subject to Article Five, the Issuers shall do or shall cause to be
done all things necessary to preserve and keep in full force and effect their
respective corporate or partnership existence, as the case may be, and the
corporate, partnership or other existence of each of the Restricted Subsidiaries
in accordance with the respective organizational documents of each such
Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of the Issuers and the Restricted Subsidiaries; provided, however,
-------- -------
that the Issuers shall not be required to preserve any such right, license or
franchise, or the corporate or partnership existence of any Restricted
Subsidiary, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuers and the Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, adverse in any material respect to the Holders;
provided, further, however, that a determination of the Board of Directors of
-------- ------- -------
the Company shall not be required in the event of a merger of one
-59-
or more Wholly Owned Restricted Subsidiaries of the Company with or into another
Wholly Owned Restricted Subsidiary of the Company or another Person, if the
surviving Person is a Wholly Owned Restricted Subsidiary of the Company
organized under the laws of the United States or a State thereof or of the
District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
---------------------------------
The Issuers shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon either of the Issuers or any of
their Restricted Subsidiaries or upon the income, profits or property of either
of the Issuers or any of their Restricted Subsidiaries and (2) all lawful claims
for labor, materials and supplies which, in each case, if unpaid, might by law
become a material liability, or Lien (other than a Permitted Lien) upon the
property, of either Issuer or any of their Restricted Subsidiaries; provided,
--------
however, that the Issuers shall not be required to pay or discharge or cause to
-------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves or other provision has been made.
SECTION 4.09. Notice of Defaults.
------------------
(1) In the event that any Indebtedness of either of the Issuers or
any of their Restricted Subsidiaries is declared due and payable before its
maturity because of the occurrence of any default (or any event which, with
notice or lapse of time, or both, would constitute such a default) under such
Indebtedness, the Issuers shall promptly give written notice to the Trustee of
such declaration, the status of such default or event and what action the
Issuers are taking or propose to take with respect thereto.
(2) Upon becoming aware of any Default or Event of Default, the
Issuers shall promptly deliver an Officers' Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10. Maintenance of Properties.
-------------------------
The Company shall cause all material properties owned by or leased to
it or any of its Restricted Subsidiaries and used or useful in the conduct of
its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all
-60-
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section shall prevent the Company or any of its
-------
Restricted Subsidiaries from discontinuing the use, operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Company or of the
board of directors of the Restricted Subsidiary concerned, or of an officer (or
other agent employed by the Company or of any of its Restricted Subsidiaries) of
the Company or such Restricted Subsidiary having responsibility for any such
property, desirable in the conduct of the business of the Company or any of its
Restricted Subsidiaries, and if such discontinuance or disposal is not adverse
in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
----------------------
The Issuers shall deliver to the Trustee within 100 days after the
close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer of each of
the Issuers stating that a review of the activities of the Issuers has been made
under the supervision of the signing officers with a view to determining whether
a Default or Event of Default has occurred and whether or not the signers know
of any Default or Event of Default that occurred during such fiscal year. If
they do know of such a Default or Event of Default, the certificate shall
describe all such Defaults or Events of Default, their status and the action the
Issuers are taking or propose to take with respect thereto. The first
certificate to be delivered by the Issuers pursuant to this Section 4.11 shall
be for the fiscal year ending December 31, 1997.
SECTION 4.12. Provision of Financial Information.
----------------------------------
Whether or not the Issuers are subject to Section 13(a) or 15(d) of
the Exchange Act, or any successor provision thereto, the Issuers shall file
with the SEC the annual reports, quarterly reports and other documents which the
Issuers would have been required to file with the SEC pursuant to such
Section 13(a) or 15(d) or any successor provision thereto if the Issuers were so
required, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Issuers would have
---------------------
been required so to file such documents if the Issuers were so required. The
Issuers shall
-61-
also in any event (a) within 15 days of each Required Filing Date (whether or
not permitted or required to file with the SEC) (i) transmit by mail to all
holders of Securities, as their names and addresses appear in the note register,
without cost to such holders, and (ii) file with the Trustee, copies of the
annual reports, quarterly reports and other documents which the Issuers are
required to file with the SEC pursuant to the preceding sentence or, if such
filing is not so permitted, information and data of a similar nature, and
(b) if, notwithstanding the preceding sentence, filing such documents by the
Issuers with the SEC is not permitted under the Exchange Act, promptly upon
written request supply copies of such documents to any prospective Holder. The
Issuers shall not be obligated to file any such reports with the SEC if the SEC
does not permit such filings for all companies similarly situated other than due
to any action or inaction by the Issuers. Notwithstanding the foregoing
provisions, this covenant shall be deemed to have been satisfied during the
period prior to the effectiveness of the Exchange Offer Registration Statement
if the Issuers cause such annual reports, quarterly reports and other documents
to be filed with the Commission by FVOP if such filings contain substantially
the same information that would be required if such documents were filed by the
Issuers. The Issuers will also comply with (S)314(a) of the TIA.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Issuers and the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law, which would prohibit or
forgive either of the Issuers or such Subsidiary Guarantor from paying all or
any portion of the Accreted Value or principal of and/or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) each of the Issuers
and the Subsidiary Guarantors hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.14. Change of Control.
-----------------
(a) The Company shall, within 35 days following the date of
consummation of a transaction resulting in a Change of
-62-
Control, commence an Offer to Purchase all outstanding Securities at a purchase
price in cash equal to 101% of the Accreted Value of the Securities on such
Purchase Date plus accrued and unpaid interest, if any, to such Purchase Date.
Such Offer to Purchase will be consummated not earlier than 20 Business Days and
not later than 65 days after the commencement thereof. Each Holder shall be
entitled to tender all or any portion of the Securities owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
untendered portion of a Security must be in an integral multiple of $1,000
Principal Amount at Maturity.
(b) On or prior to the Purchase Date specified in the Offer to
Purchase, the Company shall (i) accept for payment all Securities or portions
thereof validly tendered pursuant to the Offer, (ii) deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.04) money sufficient to pay the Purchase Price
of all Securities or portions thereof so accepted and (iii) deliver or cause to
be delivered to the Trustee for cancellation all Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent (or the Company,
if so acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the Purchase Price for such Securities,
and the Trustee shall promptly authenticate and mail or deliver to each Holder a
new Security or Securities equal in Principal Amount at Maturity to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule14e-1 under, the Exchange Act and any violation of the provisions of this
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
SECTION 4.15. [Intentionally Omitted.]
-63-
SECTION 4.16. Limitations on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
----------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions to the Company
or any other Restricted Subsidiary on its Equity Interests or with respect to
any other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (b) make
loans or advances to, or guarantee any Indebtedness or other obligations of, the
Company or any other Restricted Subsidiary or (c) transfer any of its
properties or assets to the Company or any other Restricted Subsidiary (any such
encumbrance or restriction in the foregoing clauses (a), (b) and (c), a "Payment
-------
Restriction"), except for (i) any such encumbrance or restriction existing on
-----------
the Issue Date, including, without limitation, pursuant to the Senior Credit
Facility or the FVOP Indenture, in each case as in effect on the Issue Date, and
any amendments, restatements, renewals, replacements or refinancings
(collectively, a "refinancing") thereof; provided, however, that such
----------- -------- -------
refinancings are either (x) no more restrictive in the aggregate with respect to
such encumbrances or restrictions than those contained in the FVOP Indenture as
in effect on the Issue Date or (y) do not prohibit the payment of dividends or
distributions to the Company in an amount sufficient to pay cash interest on
Securities (assuming no Cash Interest Election is made) as required under this
Indenture or to pay the Principal Amount at Maturity of the Securities at their
Stated Maturity unless an event has occurred which permits (or with the giving
of notice or lapse of time or both would permit) the acceleration of the
maturity of such Indebtedness, (ii) any such encumbrance or restriction existing
under or by reason of applicable law, (iii) any such encumbrance or restriction
existing under or by reason of any instrument governing Indebtedness or Equity
Interests of an Acquired Person acquired by the Company or any Restricted
Subsidiary as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred by such Acquired Person in connection with, as a
result of or in contemplation of such acquisition); provided, however, that such
-------- -------
encumbrances and restrictions are not applicable to the Company or any
Restricted Subsidiary, or the properties or assets of the Company or any
Restricted Subsidiary, other than the Acquired Person, (iv) any such
encumbrance or restriction existing under or by reason of customary non-
assignment provisions in leases or cable television franchises entered into in
the ordinary course of business and consistent
-64-
with past practices, (v) any such encumbrance or restriction existing under or
by reason of any agreement governing Purchase Money Indebtedness for property
acquired in the ordinary course of business that only imposes encumbrances and
restrictions on the property so acquired, (vi) any such encumbrance or
restriction existing under or by reason of any agreement for the sale or
disposition of the Equity Interests or assets of any Restricted Subsidiary;
provided, however, that such encumbrances and restrictions described in this
-------- -------
clause (vi) are only applicable to such Restricted Subsidiary or assets, as
applicable, and any such sale or disposition is made in compliance with
Section 4.05 to the extent applicable thereto, (vii) any such encumbrance or
restriction existing under or by reason of any agreement governing refinancing
Indebtedness permitted under clause (h) of Section 4.04; provided, however, that
-------- -------
the encumbrances and restrictions contained in the agreements governing such
Indebtedness are no more restrictive in the aggregate than those contained in
the agreements governing the Indebtedness being refinanced immediately prior to
such refinancing, (viii) any such encumbrance or restriction existing under or
by reason of this Indenture or (ix) any such encumbrance or restriction existing
under any other agreement, instrument or document hereafter in effect; provided,
--------
however, that the terms and conditions of any such encumbrance or restriction
-------
either (a) are not more restrictive than those contained in the FVOP Indenture
as in effect on the Issue Date or (b) in the case of any such agreement,
instrument or document governing Indebtedness, do not prohibit the payment of
dividends or distributions to the Company in an amount sufficient to pay cash
interest on the Securities (assuming no Cash Interest Election is made) as
required under this Indenture or to pay the Principal Amount at Maturity of the
Securities at their Stated Maturity unless an event has occurred which permits
(or with the giving of notice or lapse of time or both would permit) the
acceleration of the maturity of such Indebtedness.
SECTION 4.17. Designation of Unrestricted Subsidiaries.
----------------------------------------
The Company may designate any Subsidiary of the Company as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
-----------
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(b) at the time of and after giving effect to such Designation, the
Company could Incur $1.00 of additional
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Indebtedness under the Debt to Operating Cash Flow Ratio of the first
paragraph of Section 4.04; and
(c) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to the first paragraph of
Section 4.06 in an amount (the "Designation Amount") equal to the Company's
------------------
proportionate interest in the Fair Market Value of such Subsidiary on such
date; provided, however, that the condition set forth in this clause (c)
-------- -------
shall not be applicable to the designation of a Subsidiary as an
Unrestricted Subsidiary which is made as part of an Investment or Permitted
Strategic Investment made in accordance with clause (viii) or (ix) of the
penultimate paragraph of Section 4.06.
Neither the Company nor any Restricted Subsidiary shall at any time
(x) provide credit support for, subject any of its property or assets (other
than the Equity Interests of any Unrestricted Subsidiary) to the satisfaction
of, or guarantee, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary, except, in the
case of clause (x) or (y), to the extent otherwise permitted under the terms of
this Indenture, including, without limitation, pursuant to Sections 4.04 and
4.06.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
----------
(a) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by resolutions of
the Board of Directors of the Company, delivered
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to the Trustee certifying compliance with the foregoing provisions.
SECTION 4.18. Limitation on Liens.
-------------------
The Company will not, directly or indirectly, Incur any Liens of any
kind against or upon any of its properties or assets now owned or hereafter
acquired, or any proceeds therefrom or any income or profits therefrom, to
secure any Indebtedness unless contemporaneously therewith effective provision
is made to secure the Securities equally and ratably with such Indebtedness with
a Lien on the same properties and assets securing Indebtedness for so long as
such Indebtedness is secured by such Lien, except for (i) Liens on Equity
Interests of Subsidiaries of the Company securing obligations under the Senior
Credit Facility, (ii) Liens on Equity Interests of Unrestricted Subsidiaries and
(iii) Permitted Liens.
SECTION 4.19. Limitation on Guarantees of Indebtedness
by Restricted Subsidiaries.
----------------------------------------
In the event that any Restricted Subsidiary (other than a Subsidiary
Guarantor), directly or indirectly, guarantees any Indebtedness of the Company
other than the Securities (the "Other Indebtedness"), the Company shall cause
------------------
such Restricted Subsidiary to concurrently guarantee (a "Subsidiary Guarantee")
--------------------
the Company's obligations under this Indenture and the Securities to the same
extent that such Restricted Subsidiary guaranteed the Company's obligations
under the Other Indebtedness (including waiver of subrogation, if any);
provided, however, that if such Other Indebtedness is (i) not Subordinated
-------- -------
Indebtedness of the Company, the Subsidiary Guarantee shall be pari passu in
---- -----
right of payment with the guarantee of the Other Indebtedness or (ii)
Subordinated Indebtedness of the Company, the Subsidiary Guarantee shall be
senior in right of payment to the guarantee of the Other Indebtedness; provided,
--------
further, however, that each Subsidiary issuing a Subsidiary Guarantee will be
------- -------
automatically and unconditionally released and discharged from its obligations
under such Subsidiary Guarantee upon the release or discharge of the guarantee
of the Other Indebtedness that resulted in the creation of such Subsidiary
Guarantee, except a discharge or release by, or as a result of, any payment
under the guarantee of such Other Indebtedness by such Subsidiary Guarantor.
The Company shall cause each Restricted Subsidiary issuing a Subsidiary
Guarantee to (i) execute and deliver to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such Restricted
Subsidiary shall unconditionally guarantee all of the Company's obligations
under
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the Securities and this Indenture on the terms set forth in Article Eleven,
(ii) execute and deliver a Subsidiary Guarantee substantially in the form set
forth on Exhibit B hereto, (iii) deliver to the Trustee an opinion of counsel
---------
that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal, valid, binding
and enforceable obligation of such Restricted Subsidiary (which opinion may be
subject to customary assumptions and qualifications) and (iv) execute and
deliver to the Initial Purchasers (as defined in the Registration Rights
Agreement) a counterpart to the Registration Rights Agreement as a Subsidiary
Guarantor thereunder. Thereafter, such Restricted Subsidiary shall (unless
released in accordance with the terms of this Indenture) be a Subsidiary
Guarantor for all purposes of this Indenture.
SECTION 4.20. Limitation on Conduct of Business of Capital.
--------------------------------------------
Capital will not own any operating assets or other properties or
conduct any business other than to serve as an Issuer and an obligor on the
Securities and as a guarantor of obligations under the Senior Credit Facility.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Merger, Sale of Assets, etc.
---------------------------
(a) The Issuers will not consolidate with or merge with or into
(whether or not such Issuer is the Surviving Person) any other entity and the
Issuers will not and will not permit any of their respective Restricted
Subsidiaries to sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of such Issuer's properties and assets (determined, in
the case of the Company, on a consolidated basis for the Company and the
Restricted Subsidiaries) to any entity in a single transaction or series of
related transactions, unless: (i) either (x) such Issuer shall be the Surviving
Person or (y) the Surviving Person (if other than such Issuer) shall be, in the
case of Capital, a corporation or, in any other case, a corporation,
partnership, limited liability company, limited liability limited partnership or
trust organized and validly existing under the laws of the United States of
America or any State thereof or the District of Columbia, and shall, in any such
case, expressly assume by a supplemental indenture, the due and punctual payment
of the principal of, premium, if any, and interest on all the Securities and the
performance and observance
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of every covenant of this Indenture to be performed or observed on the part of
the applicable Issuer; (ii) immediately thereafter, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to any such transaction involving the Incurrence by the Company or any
Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and
treating any Indebtedness not previously an obligation of the Company or any
Restricted Subsidiary in connection with or as a result of such transaction as
having been Incurred at the time of such transaction), the Surviving Person
could Incur, on a pro forma basis after giving effect to such transaction as if
it had occurred at the beginning of the latest fiscal quarter for which
consolidated financial statements of the Company are available, at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the Debt to
Operating Cash Flow Ratio of the first paragraph of Section 4.04; and (iv)
immediately thereafter the Surviving Person shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of such Issuer immediately
prior to such transaction.
(b) Subject to the requirements of the immediately preceding
paragraph, in the event of a sale of all or substantially all of the assets of
any Subsidiary Guarantor or all of the Equity Interests of any Subsidiary
Guarantor, by way of merger, consolidation or otherwise, then the Surviving
Person of any such merger or consolidation, or such Subsidiary Guarantor, if all
of its Equity Interests are sold, shall be released and relieved of any and all
obligations under the Subsidiary Guarantee of such Subsidiary Guarantor if
(i) the Person or entity surviving such merger or consolidation or acquiring the
Equity Interests of such Subsidiary Guarantor is not a Restricted Subsidiary,
and (ii) the Net Cash Proceeds from such sale are used after such sale in a
manner that complies with the provisions of Section 4.05. Except as provided
in the preceding sentence, no Subsidiary Guarantor shall consolidate with or
merge with or into another Person, whether or not such Person is affiliated with
such Subsidiary Guarantor and whether or not such Subsidiary Guarantor is the
Surviving Person, unless (i) the Surviving Person is a corporation, partnership,
limited liability company, limited liability limited partnership or trust
organized or existing under the laws of the United States, any State thereof or
the District of Columbia, (ii) the Surviving Person (if other than such
Subsidiary Guarantor) assumes all the obligations of such Subsidiary Guarantor
under the Securities and this Indenture pursuant to a supplemental indenture in
a form reason ably satisfactory to the Trustee, (iii) at the time of and
immediately after such Disposition, no Default or Event of Default shall have
occurred and be continuing, and (iv) the
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Surviving Person will have Consolidated Net Worth (immediately after giving pro
forma effect to the Disposition) equal to or greater than the Consolidated Net
Worth of such Subsidiary Guarantor immediately preceding the transaction;
provided, however, that clause (iv) of this paragraph shall not be a condition
-------- -------
to a merger or consolidation of a Subsidiary Guarantor if such merger or
consolidation only involves the Company and/or one or more Wholly Owned
Restricted Subsidiaries.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which an Issuer or any
Subsidiary Guarantor is not the Surviving Person and the Surviving Person is to
assume all the obligations of such Issuer or any such Subsidiary Guarantor under
the Securities and this Indenture pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, such Issuer or such Subsidiary Guarantor, as the case
may be, and such Issuer or such Subsidiary Guarantor, as the case may be, shall
be discharged from its Obligations under this Indenture, the Securities or its
Subsidiary Guarantee, as the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
Each of the following shall be an "Event of Default":
(1) failure to pay interest on any Securities when the same becomes
due and payable and such Default continues for a period of 30 days;
(2) failure to pay the Accreted Value of any Securities when the
same becomes due and payable at maturity, upon redemption or otherwise;
(3) failure to perform or comply with any of the provisions of
Section 4.05, 4.14 or 5.01;
(4) failure to observe or perform any other covenant, warranty or
agreement contained in the Securities or this Indenture, and the Default
continues for the period and after the notice specified in the last
paragraph of this Section 6.01;
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(5) a default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any Restricted
Subsidiary having an outstanding principal amount of $10 million or more
individually or in the aggregate that has resulted in the acceleration of
the payment of such Indebtedness or the failure to pay principal when due
at the stated maturity of any such Indebtedness;
(6) there shall have been any final judgment or judgments (not
subject to appeal) against the Company or any Restricted Subsidiary in an
amount of $10 million or more (net of any amounts covered by reputable and
creditworthy insurance companies) which remains undischarged or unstayed
for a period of 60 days after the date on which the right to appeal has
expired;
(7) any holder or holders of at least $10 million in aggregate
principal amount of Indebtedness of the Company or any Restricted
Subsidiary, after a default under such Indebtedness, shall notify the
Trustee of the intended sale or disposition of any assets of the Company or
any Restricted Subsidiary with an aggregate Fair Market Value (as deter
mined in good faith by the Board of Directors of the Company) of at least
$2 million that have been pledged to or for the benefit of such holder or
holders to secure such Indebtedness or shall commence proceedings, or take
any action (including by way of setoff), to retain in satisfaction of such
Indebtedness or to collect on, seize, dispose of or apply in satisfaction
of such Indebtedness, such assets of the Company or any Restricted
Subsidiary (including funds on deposit or held pursuant to lock-box and
other similar arrangements) which continues for five Business Days after
notice has been given to the Company and the representative of such
Indebtedness;
(8) either of the Issuers or any Significant Restrict ed Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
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(D) makes a general assignment for the benefit of its creditors;
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against either of the Issuers or any
Significant Restricted Subsidiary in an involuntary case or
proceeding,
(B) appoints a Custodian of either of the Issuers or any
Significant Restricted Subsidiary or for all or substantially all of
its property, or
(C) orders the liquidation of either of the Issuers or any
Significant Restricted Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60
consecutive days; provided, however, that if the entry of such order or
-------- -------
decree is appealed and dismissed on appeal then the Event of Default
hereunder by reason of the entry of such order or decree shall be deemed to
have been cured; or
(10) other than as provided in or pursuant to any Subsidiary
Guarantee or this Indenture, such Subsidiary Guarantee ceases to be in full
force and effect or is declared null and void and unenforceable or found
to be invalid or any Subsidiary Guarantor denies its liability under its
Subsidiary Guarantee (other than by reason of a release of such Subsidiary
Guarantor from its Subsidiary Guarantee in accordance with the terms of
this Indenture and such Subsidiary Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
--------------
Federal, state or foreign law for the relief of debtors. The term "Custodian"
---------
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee notifies the Issuers, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the outstanding Securities notify the Issuers
and the Trustee, of the Default in writing and the Issuers do not cure the
Default within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee
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if so requested by the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities then outstanding. When a Default is cured, it
ceases.
SECTION 6.02. Acceleration.
------------
If an Event of Default with respect to the Securities (other than an
Event of Default specified in clause (8) or (9) of Section 6.01 with respect to
either of the Issuers) occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate Principal Amount at Maturity of the outstanding
Securities by notice in writing to the Issuers (and to the Trustee if given by
the Holders) may declare the Accreted Value of all the outstanding Securities,
together with all accrued and unpaid interest, if any, thereon, as of such date
of declaration to be immediately due and payable (provided that Securities whose
Accreted Value remains unpaid after such date of declaration shall continue to
accrete pursuant to the definition of "Accreted Value" and accrue interest as
provided in the Securities). Upon any such declaration, such Accreted Value and
accrued and unpaid interest, if any, shall become immediately due and payable.
If an Event of Default specified in clause (8) or (9) of Section 6.01
with respect to either of the Issuers occurs, the Accreted Value of all of the
outstanding Securities, together with all accrued and unpaid interest, if any,
thereon, will ipso facto become immediately due and payable without any
---- -----
declaration or other act on the part of the Trustee or any Holder (provided that
Securities whose Accreted Value remains unpaid after the date of such Event of
Default shall continue to accrete pursuant to the definition of "Accreted Value"
and accrue interest as provided in the Securities).
After a declaration of acceleration, but before a judgment or decree
of the money due in respect of the Securities has been obtained, the Holders of
not less than a majority in aggregate Principal Amount at Maturity of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default (other than
the nonpayment of Accreted Value or principal of and interest on the Securities
which has become due solely by virtue of such acceleration) have been cured or
waived and if the rescission would not conflict with any judgment or decree. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
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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 Accreted Value or principal of or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
----------------------
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate Principal Amount at Maturity of the then outstanding Securities, on
behalf of all the Holders, by written notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of Accreted Value or principal of or interest on any Security as
specified in clauses (1) and (2) of Section 6.01 or a Default in respect of any
term or provision of this Indenture that may not be amended or modified without
the consent of each Holder affected as provided in Section 10.02. The Issuers
shall deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. In case of any such waiver, the Issuers, the Trustee and the Holders
shall be restored to their former positions and rights hereunder and under the
Securities, respectively. This paragraph of this Section 6.04 shall be in lieu
of (S)316(a)(1)(B) of the TIA and such (S)316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
-74-
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in Principal Amount
at Maturity of the then outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided,
--------
however, that the Trustee may take any other action deemed proper by the Trustee
-------
which is not inconsistent with such direction. In the event the Trustee takes
any action or follows any direction pursuant to this Indenture, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against any loss or expense caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of (S)316(a)(1)(A) of the TIA,
and such (S)316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities 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 at
Maturity of the then outstanding Securities make a written request to the
Trustee to pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity 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 and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in Principal
Amount at Maturity of the then outstanding Securities (excluding Affiliates
of either of the Issuers) do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
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A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of Accreted Value or principal of and interest on
the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of interest or principal specified
in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuers
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
--- -----
Securities and such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Issuers (or
any other obligor upon the Securities), their creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel,
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and any other amounts due the Trustee under Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
Accreted Value or principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for Accreted Value or principal and interest, respectively; and
Third: to the Issuers.
The Trustee, upon prior written notice to the Issuers, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in
its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 shall not
apply to a suit by the Trustee, a suit by a Holder or group of Holders of more
than 10% in aggregate Principal Amount at Maturity of the outstanding
Securities, or to any suit instituted by any Holder for the enforcement or the
payment of the Accreted Value or principal or interest on any Securities on or
after the respective due dates expressed in the Security.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of
such duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions conforming
to the requirements of this Indenture; however, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of para graph (b) of
this Section 7.01;
(2) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity reasonably satisfactory
to it against such risk, liability, loss, fee or expense which might be incurred
by it in compliance with such request or direction.
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(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on an Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(d) Any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Security holders pursuant to this Indenture, unless
such Security holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such re quest or direction.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document,
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but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Issuers, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuers or their
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Issuers' use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuers in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
------------------
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 30 days
after the occurrence thereof. Except in the case of a Default or an Event of
Default in payment of principal of or interest on any Security or a Default or
Event of Default in complying with Section 5.01, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Securityholders.
This Section 7.05 shall be in lieu of the proviso to (S)315(b) of the TIA and
such proviso to (S)315(b) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S)313(a), within 60 days after each June 15
beginning with the June 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report
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dated as of such June 15 that complies with TIA (S)313(a); provided, however,
-------- -------
that, if no event under TIA (S)313(a) has occurred in a 12 month period, no
such report need be transmitted. The Trustee also shall comply with TIA
(S)313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
The Issuers shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Issuers shall pay to the Trustee from time to time such
compensation as the Issuers and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Issuers shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 9.01 hereof.
The Issuers shall indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith. The Trustee
shall notify the Issuers promptly of any claim asserted against the Trustee for
which it may seek indemnity. However, the failure by the Trustee to so notify
the Issuers promptly shall not relieve the Issuers of their obligations
hereunder except to the extent that the Issuers are materially prejudiced
thereby. The Issuers shall
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defend the claim and the Trustee shall cooperate in the defense (and may employ
its own counsel) at the Issuers' expense; provided, however, that the Issuers'
-------- -------
reimbursement obligation with respect to counsel employed by the Trustee will be
limited to the reasonable fees of such counsel. The Issuers need not pay for
any settlement made without their written consent, which consent shall not be
unreasonably withheld. The Issuers need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee as a result of the
violation of this Indenture by the Trustee.
To secure the Issuers' payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securi ties against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Accreted Value or principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Issuers' obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Issuers' obligations pursuant to
Article Nine and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Issuers in
writing. The Holders of a majority in Principal Amount at Maturity of the then
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Issuers in writing and may appoint a successor Trustee with the Issuers'
consent. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in Principal Amount at Maturity of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in Principal Amount at Maturity of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuers' obligations under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee, provided such corporation shall be otherwise qualified and
eligible under this Article Seven.
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SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA (S)(S)310(a)(1) and 310(a)(2). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA (S)310(b), the
Trustee and the Issuers shall comply with the provisions of TIA (S)310(b). If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims
Against Company.
---------------------------------
The Trustee shall comply with TIA (S)311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S)311(a) to the extent indicated therein.
ARTICLE EIGHT
[INTENTIONALLY OMITTED]
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Issuers' Obligations.
-----------------------------------
The Issuers may terminate their and the Subsidiary Guarantors'
substantive obligations in respect of the Securities by delivering all
outstanding Securities to the Trustee for cancellation and paying all sums
payable by them on account of principal of and interest on all Securities or
otherwise. In addition to the foregoing, the Issuers may, provided that no
Default or Event of Default has occurred and is continuing or would arise
therefrom (or, with respect to a Default or Event of Default specified in
Section 6.01(8) or (9), any time on or prior to the 91st calendar day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day)) terminate their and the Subsidiary
Guarantors' substantive obligations in respect of the Securities (except for
their obligations to pay the principal of and inter-
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est on the Securities to their Maturity Date and the Subsidiary Guarantors'
guarantee thereof) by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or direct non-callable obligations of the
United States of America for the payment of which the full faith and credit of
the United States is pledged ("United States Government Obligations") sufficient
------------------------------------
(without reinvestment) to pay all remaining Indebtedness on the Securities to
their Maturity Date, (ii) delivering to the Trustee either an Opinion of Counsel
or a ruling directed to the Trustee from the Internal Revenue Service to the
effect that the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes solely as a result of such deposit and
termination of obligations, (iii) delivering to the Trustee an Opinion of
Counsel to the effect that the Issuers' exercise of their option under this
paragraph will not result in any of the Issuers, the Trustee or the trust
created by the Issuers' deposit of funds pursuant to this provision becoming or
being deemed to be an "investment company" under the Investment Company Act of
1940, as amended, and (iv) delivering to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating compliance with all conditions precedent
provided for herein. In addition, the Issuers may, provided that no Default or
Event of Default has occurred and is continuing or would arise therefrom (or,
with respect to a Default or Event of Default specified in Section 6.01(8) or
(9), any time on or prior to the 91st calendar day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until after such 91st day)) terminate all of their and the Subsidiary
Guarantors' substantive obligations in respect of the Securities (including
their obligations to pay the principal of and interest on the Securities and the
Subsidiary Guarantors' guarantee thereof) by (i) depositing with the Trustee,
under the terms of an irrevocable trust agreement, money or United States
Government Obligations sufficient (without reinvestment) to pay all remaining
indebtedness on the Securities to their Maturity Date, (ii) delivering to the
Trustee either a ruling directed to the Trustee from the Internal Revenue
Service to the effect that the Holders of the Securities will not recognize
income, gain or loss for federal income tax purposes solely as a result of such
deposit and termination of obligations or an Opinion of Counsel based upon such
a ruling addressed to the Trustee or a change in the applicable Federal tax law
since the date of this Indenture to such effect, (iii) delivering to the Trustee
an Opinion of Counsel to the effect that the Issuers' exercise of their option
under this paragraph will not result in any of the Issuers, the Trustee or the
trust created by the Issuers' deposit of funds pursuant to this provision
becoming or being deemed to be an "investment company" under the Investment
Company Act of 1940, as
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amended, and (iv) delivering to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating compliance with all conditions precedent
provided for herein.
Notwithstanding the foregoing paragraph, the Issuers' obligations in
Sections 2.03, 2.05, 2.06, 2.07, 4.01 (but not with respect to termination of
substantive obligations pursuant to the third sentence of the foregoing
paragraph), 4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until the Securities
are no longer outstanding. Thereafter the Issuers' obligations in Sections
7.07, 9.03 and 9.04 shall survive.
After such delivery or irrevocable deposit and delivery of an
Officers' Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Issuers' and the Subsidiary
Guarantors' obligations under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 9.02. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities.
SECTION 9.03. Repayment to Issuers.
--------------------
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Issuers upon written request any excess money held by it at any time. The
Trustee shall pay to the Issuers upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
-------- -------
may at the expense of the Issuers cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Issuers. After payment to the Issuers, Securityholders entitled
to money must look to the Issuers for payment as general creditors unless an
applicable abandoned property law designates another person and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
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SECTION 9.04. Reinstatement.
-------------
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuers' and the Subsidiary Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Issuers have made any payment of
-------- -------
interest on or principal of any Securities because of the reinstatement of their
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
--------------------------
The Issuers and the Subsidiary Guarantors, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency; provided,
--------
however, that such amendment or supplement does not materially and
-------
adversely affect the rights of any Holder under this Indenture or the
Securities;
(ii) to effect the assumption by a successor Person of all
obligations of either of the Issuers under the Securities and this
Indenture in connection with any transaction complying with Article Five of
this Indenture;
(iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(iv) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
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(v) to make any change that would provide any additional benefit
or rights to the Holders;
(vi) to make any other change that does not materially and
adversely affect the rights of any Holder under this Indenture or the
Securities;
(vii) to evidence the succession of another Person to any
Subsidiary Guarantor and the assumption by any such successor of the
covenants of such Subsidiary Guarantor herein and in the Subsidiary
Guarantee;
(viii) to add to the covenants of the Issuers or the Subsidiary
Guarantors for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Issuers or any Subsidiary Guarantor;
(ix) to secure the Securities pursuant to the requirements of
Section 4.18 or otherwise; or
(x) to reflect the release of a Subsidiary Guarantor from its
obligations with respect to its Subsidiary Guarantee in accordance with
the provisions of Section 11.03 and to add a Guarantor pursuant to the
requirements of Sections 4.19 and 11.07;
provided, however, that the Issuers have delivered to the Trustee an Opinion of
-------- -------
Counsel stating that such amendment or supplement complies with the provisions
of this Section 10.01.
SECTION 10.02. With Consent of Holders.
-----------------------
Subject to Section 6.07, the Issuers and the Subsidiary Guarantors,
when authorized by a resolution of their respective Boards of Directors, and the
Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in aggregate Principal
Amount at Maturity of the then outstanding Securities. Subject to Section 6.07,
the Holders of a majority in aggregate Principal Amount of Maturity of the then
outstanding Securities, on behalf of all Holders, may waive compliance by the
Issuers or any Subsidiary Guarantor with any provision of this Indenture or the
Securities. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) change the definition of Accreted Value or change the
definition of Principal Amount at Maturity or change the
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Stated Maturity of the principal of or any installment of interest on any
Security or alter the optional redemption or repurchase provisions of any
Security or this Indenture in a manner adverse to the holders of the
Securities;
(2) reduce the Accreted Value of or the Principal Amount at
Maturity of any Security;
(3) reduce the rate or extend the time for payment of interest on
any Security;
(4) change the place or currency of payment of the Accreted Value
of or the principal of or interest on any Security;
(5) modify any provisions of Section 6.04 (other than to add
sections of this Indenture or the Securities subject thereto) or 6.07 or
this Section 10.02 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Securityholder affected);
(6) reduce the percentage of the Principal Amount of Maturity of
outstanding Securities necessary for amendment to or waiver of compliance
with any provision of this Indenture or the Securities or for waiver of
any Default;
(7) waive a default in the payment of the Accreted Value or of the
principal of, interest on, or redemption payment with respect to, any
Security (except a recision of acceleration of the Securities by the
Holders as provided in Section 6.02 and a waiver of the payment of default
that resulted from such acceleration);
(8) modify the ranking or priority of the Securities or the
Subsidiary Guarantee of any Subsidiary Guarantor in any manner adverse to
the Holders;
(9) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or this Indenture otherwise than in
accordance with this Indenture; or
(10) modify the provisions relating to any Offer to Purchase
required pursuant to Section 4.05 or 4.14 in a manner materially adverse to
the Holders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any
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proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04. Effect of Consents.
------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or waiver
whether or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (10) of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return
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it to the Holder. Alternatively, if the Issuers or the Trustee so determines,
the Issuers in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
-------------------------------
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Issuers and
the Subsidiary Guarantors, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not (except to the extent
required in the case of a supplemental indenture entered into pursuant to
Section 10.01(iv)) be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01. Unconditional Guarantee.
-----------------------
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees to each Holder of a Security authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns that: the
Accreted Value or principal of and interest on the Securities will be promptly
paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, and interest on the overdue Accreted
Value or principal and interest on any overdue interest on the Securities and
all other obligations of the Issuers to the Holders or the Trustee hereunder or
under the Securities will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; subject, however, to the
limitations set forth in Section 11.04. Each Subsidiary Guarantor hereby agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any
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Holder of the Securities with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuers, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuers, any right to require a
proceeding first against the Issuers, protest, notice and all demands whatsoever
and covenants that the Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture, and this Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Issuers, any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Issuers or any Subsidiary Guarantor, any amount paid
by the Issuers or any Subsidiary Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Subsidiary Guarantor further agrees that, as
between each Subsidiary Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purpose of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Subsidiary Guarantor for the purpose of this
Subsidiary Guarantee.
SECTION 11.02. Severability.
------------
In case any provision of this Subsidiary Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
----------------------
(a) In the event that each holder of Other Indebtedness which
resulted in the creation of a Subsidiary Guarantee unconditionally releases a
Subsidiary Guarantor of all of its obligations under its guarantee of such Other
Indebtedness pursuant to a written agreement in form and substance satisfactory
to the Trustee (other than a release resulting from payment under such
guarantee) such Subsidiary Guarantor shall be automat-
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ically and unconditionally released from all obligations under its Subsidiary
Guarantee.
(b) Additionally, if the Securities are defeased in accordance with
the terms of this Indenture, or if all or substantially all of the assets of
any Subsidiary Guarantor or all of the Equity Interests of any Subsidiary
Guarantor is sold (including by issuance or otherwise) by the Company or any of
its Subsidiaries in a transaction constituting an Asset Sale and if (x) the Net
Cash Proceeds from such Asset Sale are used in accordance with Section 4.05 or
(y) the Company delivers to the Trustee an Officers' Certificate covenanting
that the Net Cash Proceeds from such Asset Sale shall be used in accordance with
Section 4.05 and within the time limits specified by such Section 4.05, then
such Subsidiary Guarantor (in the event of a sale or other disposition of all of
the Equity Interests of such Subsidiary Guarantor) or the corporation acquiring
such assets (in the event of a sale or other disposition of all or substantially
all of the assets of such Subsidiary Guarantor), shall be deemed released from
all obligations under this Article Eleven without any further action required on
the part of the Trustee or any Holder.
(c) The Trustee shall, at the sole cost and expense of the Issuers,
upon receipt of a request by the Issuers accompanied by an Officers' Certificate
certifying as to the compliance with this Section and, with respect to clause
(b) of this Section 11.03, upon receipt at the reasonable request of the
Trustee of an Opinion of Counsel that the provisions of this Section 11.03 have
been complied with, deliver an appropriate instrument evidencing such release.
Any Subsidiary Guarantor not so released remains liable for the full amount of
Accreted Value or principal of and interest on the Securities and the other
obligations of the Issuers hereunder as provided in this Article Eleven.
SECTION 11.04. Limitation of Subsidiary Guarantor's Liability.
----------------------------------------------
Each Subsidiary Guarantor, and by its acceptance hereof each Holder
and the Trustee, hereby confirms that it is the intention of all such parties
that the guarantee by such Subsidiary Guarantor pursuant to its Subsidiary
Guarantee not constitute a fraudulent transfer or conveyance for purposes of
title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law or that the obligations of such Subsidiary
Guarantor under Section 11.01 would otherwise be held or determined to be void,
invalid or
-93-
unenforceable on account of the amount of its liability under said Section
11.01. To effectuate the foregoing intention, the Holders and such Subsidiary
Guarantor hereby irrevocably agree that the obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary
Guarantee or pursuant to Section 11.05, result in the obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee not constituting such
fraudulent transfer or conveyance and not being held or determined to be void,
invalid or unenforceable.
SECTION 11.05. Contribution.
------------
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
----- --
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
------------------
shall be entitled to a contribution from all other Subsidiary Guarantors in a
pro rata amount, based on the net assets of each Subsidiary Guarantor (including
--- ----
the Funding Guarantor), determined in accordance with GAAP, subject to Section
11.04, for all payments, damages and expenses incurred by that Funding Guarantor
in discharging the Issuers' obligations with respect to the Securities or any
other Subsidiary Guarantor's obligations with respect to the Subsidiary
Guarantee.
SECTION 11.06. Execution of Subsidiary Guarantee.
---------------------------------
To further evidence their Subsidiary Guarantee to the Holders, the
Subsidiary Guarantors hereby agree to execute the Subsidiary Guarantee in
substantially the form set forth in Exhibit A to be endorsed on each Security
authenticated and delivered by the Trustee after such Subsidiary Guarantee is
executed. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on any particular Security a notation of such Subsidiary
Guarantee. Each such Subsidiary Guarantee shall be signed on behalf of each
Subsidiary Guarantor by its Chairman of the Board of Directors, its President
or one of its Vice Presidents prior to the authentication of the Security on
which it is endorsed, and the delivery of such Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of such
Subsidiary Guarantee
-94-
on behalf of such Subsidiary Guarantor. Such signature upon the Subsidiary
Guarantee may be the manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Subsidiary Guarantee, and in case such
officer who shall have signed the Subsidiary Guarantee shall cease to be such
officer before the Security on which such Subsidiary Guarantee is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed the Subsidiary Guarantee had not
ceased to be such officer of the Subsidiary Guarantor.
SECTION 11.07. Additional Subsidiary Guarantors.
--------------------------------
Any Restricted Subsidiary of the Company which is required pursuant to
Section 4.19 to become a Subsidiary Guarantor shall execute and deliver to the
Trustee (a) a supplemental indenture in form and substance reasonably
satisfactory to the Trustee which subjects such Restricted Subsidiary to the
provisions of this Indenture as a Subsidiary Guarantor, and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Restricted Subsidiary and constitutes the legal, valid,
binding and enforceable obligation of such Restricted Subsidiary (subject to
such customary exceptions concerning fraudulent conveyance laws, creditors'
rights and equitable principles).
SECTION 11.08. Subordination of Subrogation and Other Rights.
---------------------------------------------
Each Subsidiary Guarantor hereby agrees that any claim against the
Issuers that arises from the payment, performance or enforcement of such
Subsidiary Guarantor's obligations under its Subsidiary Guarantee or this
Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of
such Subsidiary Guarantor shall be made before, the payment in full in cash of
all outstanding Securities in accordance with the provisions provided therefor
in this Indenture.
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
-95-
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
----------------------------
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any
TIA provision that may be so modified, such TIA provision shall be deemed to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.02. Notices.
-------
Any notice or communication required or permitted to be given under
this Indenture shall be sufficiently given if in writing and delivered in
person, by facsimile and confirmed by overnight courier, or mailed by first-
class mail addressed as follows:
if to the Issuers:
FrontierVision Holdings, L.P.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxx, Senior Vice
President and Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-96-
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
U.S. Bank National Association
(d/b/a Colorado National Bank)
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Issuers or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first class, postage prepaid, to a
Securityholder, including any notice delivered in connection with TIA (S)
310(b), TIA (S) 313(c), TIA (S) 314(a) and TIA (S) 315(b), shall be mailed to
him at his address as set forth on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed. To
the extent required by the TIA, any notice or communication shall also be mailed
to any Person described in TIA (S) 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
-97-
SECTION 13.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA (S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuers to the Trustee to take
or refrain from taking any action under this Indenture, the Issuers shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(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, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
-98-
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
-------- -------
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture, the
Securities and the Subsidiary Guarantee without regard to principles of
conflicts of law.
SECTION 13.08. No Recourse Against Others.
--------------------------
A director, officer, employee, incorporator, limited or general
partner or stockholder, as such, of the Issuers or any Subsidiary Guarantor
shall not have any liability for any obligations of the Issuers or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantee or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 13.09. Successors.
----------
All agreements of the Issuers in this Indenture and the Securities
shall bind their successors. All agreements of each Subsidiary Guarantor in
this Indenture and Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
---------------------
The parties may sign any number of counterparts of this Indenture.
Each signed counterpart shall be an original, but all of them together represent
the same agreement.
SECTION 13.11. Severability.
------------
In case any provision in this Indenture, in the Securities or in the
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the
-99-
remaining provisions shall not in any way be affected or impaired thereby, and a
Holder shall have no claim therefor against any party hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of either of the Issuers or a Subsidiary of either of Issuers.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.13. Legal Holidays.
--------------
If a payment date occurs on a day that is not a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day, and no interest shall accrue for the intervening
period.
[Signature Pages Follow]
-100-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By: /s/ Xxxxx X. XxXxxx
---------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President & Treasurer
FRONTIERVISION HOLDINGS CAPITAL
CORPORATION
By: /s/ Xxxxx X. XxXxxx
---------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President & Treasurer
-101-
U.S. BANK NATIONAL ASSOCIATION (d/b/a COLORADO
NATIONAL BANK),
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
[FORM OF SECURITY]
EXHIBIT A
CUSIP No. 00000XXX0
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
11 7/8% SENIOR DISCOUNT NOTE DUE 2007
No. [ ] $[ ]
This Security is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of original
-- ---
Principal Amount at Maturity of this Security, the issue price is $631.18 and
the amount of original issue discount is $368.82. The issue date of this
Security is September 19, 1997 and the yield to maturity is 11 7/8%.
FrontierVision Holdings, L.P. and FrontierVision Holdings Capital
Corporation hereby jointly and severally promise to pay to [ ] or
registered assigns on the Maturity Date of September 15, 2007 the principal sum
of (x) [ ] DOLLARS or (y) if the Cash Interest Election is made, the
Accreted Value of this Security as of the Semi-Annual Accrual Date on which the
Cash Interest Election is made.
Interest Payment Dates: March 15 and September 15, commencing on the earlier of
(x) the March 15 or September 15, as the case may be, immediately following the
date of the Cash Interest Election and (y) March 15, 2002.
Record Dates: March 1 and September 1
Reference is hereby made to the further provisions on this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, FrontierVision Holdings, L.P. and FrontierVision
Holdings Capital Corporation have caused this instrument to be signed manually
or by facsimile by each of their respective duly authorized officers.
Dated: [ ]
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
A-2
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
Certificate of Authentication:
This is one of the 11 7/8% Senior Discount Notes due 2007 referred to
in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION
(d/b/a COLORADO NATIONAL BANK), as Trustee
By
-------------------------- Dated: [ ]
Authorized Signatory
A-3
(Reverse Of Security)
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
11 7/8% Senior Discount Note due 2007
1. Interest.
--------
FrontierVision Holdings, L.P., a Delaware limited partnership (the
"Company"), and FrontierVision Holdings Capital Corporation, a Delaware
corporation ("Capital" and together with the Company, the "Issuers"), jointly
and severally promise to pay to the registered holder of this Security, until
the principal hereof is paid or duly provided for, interest on the principal
amount set forth on the face of this Security at a rate of 11 7/8% per annum.
--- -----
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from and including the earlier of (x) the date of the
Cash Interest Election and (y) September 15, 2001 through but excluding the date
on which interest is paid or duly provided for. Interest shall be payable in
arrears on each March 15 and September 15 and at stated maturity, commencing on
the earlier of (a) the Interest Payment Date immediately following the date of
the Cash Interest Election and (b) March 15, 2002. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The principal of this Security shall not bear or accrue interest until
the earlier of (x) the date of the Cash Interest Election and (y) September 15,
2001, except in the case of a default in payment of principal and/or premium, if
any, upon acceleration, redemption or purchase and, in such case, the overdue
principal and any overdue premium shall bear interest at the rate of 11 7/8% per
---
annum (compounded semiannually on each March 15 and September 15) (to the extent
-----
that the payment of such interest shall be legally enforceable), from the dates
such amounts are due until they are paid or duly provided for. To the extent,
but only to the extent, interest on amounts in default constituting original
issue discount prior to the earlier of (a) the date of the Cash Interest
Election and (b) September 15, 2001 is not permitted by law, original issue
discount shall continue to accrete until paid or duly provided for. On or after
the earlier of (a) the date of the Cash Interest Election and (b) September 15,
2001, interest on overdue principal and premium, if, any, and, to the extent
permitted by law, on overdue
A-4
installments of interest will accrue, until the principal and premium, if any,
is paid or duly provided for, at the rate of 11 7/8% per annum. Interest on any
--- -----
overdue principal or premium shall be payable on demand.
2. Method of Payment.
-----------------
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the regular record date, which shall be the March 1 or September 1
(whether or not a Business Day) next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith cease
to be payable to the Holder on such regular record date and shall be paid to the
person in whose name this Security is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Issuers, notice of which shall be given to Holders not less than 15 days
prior to such special record date. Payment of the principal of and interest on
this Security will be made at the agency of the Issuers maintained for that
purpose in New York, New York and at any other office or agency maintained by
the Issuers for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Issuers payment of
-------- -------
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security register.
3. Paying Agent and Registrar.
--------------------------
Initially, U.S. Bank National Association (d/b/a Colorado National
Bank) (the "Trustee") will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent, Registrar or co-Registrar without notice to the Holders
of Securities. The Issuers or any of their Subsidiaries may act as Registrar,
co-Registrar or, except in certain circumstances specified in the Indenture,
Paying Agent.
4. Indenture.
---------
This Security is one of a duly authorized issue of Securities of the
Issuers, designated as their 11 7/8% Senior Discount Notes due 2007 (the
"Securities"), limited in aggregate Principal Amount at Maturity to $237,650,000
(except for
A-5
Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture dated as of September 19, 1997 (the "Indenture"),
among the Issuers and the Trustee. The terms of the Securities include those
stated in the Indenture and those required to be made part of the Indenture by
the Trust Indenture Act of 1939 (the "Act") (15 U.S. Code (S)(S) 77aaa-77bbbb)
as in effect on the date of the Indenture and the date the Indenture is
qualified under the Act. The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture and the Act for a statement
of them. Each Securityholder, by accepting a Security, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
-------------------
(a) The Securities are not redeemable prior to September 15, 2001,
except as provided in clause (b) below of this paragraph 5. On and after such
date, the Securities may be redeemed at any time, in whole or in part, at the
option of the Issuers, at redemption prices (expressed as percentages of the
principal amount) set forth below, if redeemed during the 12-month period
beginning September 15 of the year indicated below, in each case together with
interest accrued and unpaid to but excluding the date fixed for redemption:
Year Percentage
---- ----------
2001.................................. 107.917%
2002.................................. 105.937%
2003.................................. 103.958%
2004.................................. 101.979%
2005 and thereafter................... 100.00%
(b) At any time prior to September 15, 2000, the Issuers may redeem up
to 35% of the Principal Amount at Maturity of the Securities with the net cash
proceeds received by the Company from one or more Public Equity Offerings or
Strategic Equity Investments, at a redemption price of 111.875% of the Accreted
Value thereof, together with accrued and unpaid interest, if any, to the date
fixed for redemption; provided, however, that at least 65% in aggregate
-------- -------
Principal Amount at Maturity of the Securities originally issued remains
outstanding immediately after any such redemption (excluding any Securities
A-6
owned by the Issuers or any of their Affiliates). Notice of redemption pursuant
to this paragraph must be mailed to Holders of Securities not later than 60 days
following consummation of such Public Equity Offering.
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 Principal Amount at Maturity may be redeemed in
part. On and after the redemption date, Accreted Value ceases to accrete or
interest ceases to accrue, as the case may be, on those Securities or portion
of them called for redemption.
7. Purchase upon Occurrence of a
Change of Control.
-----------------------------
Within 30 days of the occurrence of a Change of Control, the Company
will offer to purchase the Securities, in whole and not in part, at a purchase
price equal to 101% of the Accreted Value of the Securities on such Purchase
Date plus accrued and unpaid interest, if any, to such Purchase Date.
8. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 original Principal Amount at Maturity and integral multiples of $1,000
original Principal Amount at Maturity. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption.
9. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of it
for all purposes.
10. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee or Paying Agent will repay the funds to the Issuers at
their request. After such repayment Holders of Securities entitled to such
funds must look
A-7
to the Issuers for payment unless an abandoned property law designates another
person.
11. Discharge Prior to Redemption or Maturity.
-----------------------------------------
The Indenture will be discharged and canceled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of funds or
United States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in Principal Amount at Maturity of the outstanding Securities, and any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in Principal Amount at Maturity of the outstanding
Securities. Without notice to or the consent of any Holder, the Issuers, any
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to make any
change that does not materially and adversely affect the rights of any Holder of
Securities.
13. Restrictive Covenants.
---------------------
The Securities are general unsecured senior obligations of the Issuers
limited to the aggregate Principal Amount at Maturity of $[ ]. The
Indenture restricts, among other things, the ability of the Company or any of
its Restricted Subsidiaries to permit any Liens to be imposed on their assets,
to make certain payments and investments, limits the Indebtedness which the
Company and its Restricted Subsidiaries may incur and limits the terms on which
the Company and its Restricted Subsidiaries may engage in Asset Sales. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Sales. The
Issuers must report annually to the Trustee on compliance with certain covenants
in the Indenture.
14. Successor Corporation.
---------------------
Pursuant to the Indenture, the ability of the Issuers to consolidate
with, merge with or into or transfer their assets to another person is
conditioned upon certain requirements,
A-8
including certain financial requirements applicable to the surviving Person.
15. Defaults and Remedies.
---------------------
If an Event of Default shall occur and be continuing, the Accreted
Value of, or principal of all of the outstanding Securities, plus all accrued
and unpaid interest, if any, to the date the Securities become due and payable,
as the case may be, may be declared due and payable in the manner and with the
effect provided in the Indenture.
16. Trustee Dealings with Issuers.
-----------------------------
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for either of the Issuers or their Affiliates, and may
otherwise deal with the Issuers or their Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
--------------------------
A director, officer, employee, incorporator, limited or general
partner or stockholder, as such, of either of the Issuers or any Subsidiary
Guarantor shall not have any liability for any obligations of the Issuers or any
Subsidiary Guarantor under the Securities, any Subsidiary Guarantee or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication.
--------------
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
A-9
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Securities and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
21. Governing Law.
-------------
The laws of the State of New York shall govern the Indenture, this
Security and any Subsidiary Guarantee without regard to principles of conflicts
of law.
22. Subsidiary Guarantees.
---------------------
This Security may after the date hereof be entitled to certain
Subsidiary Guarantees made for the benefit of the Holders. Reference is hereby
made to the Indenture for the terms of any Subsidiary Guarantee.
The Issuers will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
A-10
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint________________________________________________________,
agent to transfer this Security on the books of the Issuers. The agent may
substitute another to act for him.
Dated: Signed:
-------------------- -----------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:*
-----------------------------------------------------
--------------------
* Signature must be guaranteed by a member of the Medallion Signature
Program.
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [_]
If you want to elect to have only part of this Security purchased by the
Company, state the Principal Amount at Maturity: $
------------
Dated: Your signature:
--------------- ------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:*
-------------------
* Signature must be guaranteed by a member of the Medallion Signature
Program.
EXHIBIT B
[FORM OF SUBSIDIARY GUARANTEE]
GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture referred to in
the Security upon which this notation is endorsed) hereby, jointly and
severally, unconditionally guarantee on a senior basis (such guarantee by each
Subsidiary Guarantor being referred to herein as the "Subsidiary Guarantee") the
due and punctual payment of the Accreted Value or the principal of, premium, if
any, and interest, if any, on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue Accreted Value or the principal, premium and interest, if any, on the
Securities, and the due and punctual performance of all other obligations of the
Issuers to the Holders or the Trustee, all in accordance with the terms set
forth in Article Eleven of the Indenture.
The obligations of each Subsidiary Guarantor to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guarantee and the
Indenture are expressly set forth in the Indenture, and reference is hereby made
to such Indenture for the precise terms of the Subsidiary Guarantee therein
made.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
[Subsidiary Guarantor]
By:
-----------------------------------
Name:
Title:
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
Attention: [ ]
[Name and Address of Registrar]
Re: 11 7/8% Senior Discount Notes due 2007
Reference is hereby made to the Indenture, dated as of September 19,
1997 (the "Indenture"), among FrontierVision Holdings, L.P., FrontierVision
---------
Holdings Capital Corporation (the "Issuers"), and U.S. Bank National Association
-------
(d/b/a Colorado National Bank), as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
________________ (the "Transferor") owns and proposes to transfer the
----------
Securities specified in Annex A hereto in the Principal Amount at Maturity of
$___ in such Securities (the "Transfer") to ________ (the "Transferee"), as
-------- ----------
further specified in Annex A hereto. In the event that Transferor holds
Physical Securities, this Certificate is accompanied by one or more certificates
aggregating at least the Principal Amount at Maturity of Securities proposed to
be Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [_] Check if Transferee will take an Interest in the 144A Global Security.
---------------------------------------------------------------------
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
----------
Act"), and, accordingly, the Transferor hereby further certifies that the
---
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
2. [_] Check if Transferee will take an Interest in the Regulation S Global
--------------------------------------------------------------------
Security pursuant to Regulation S. The Transfer is being effected pursuant to
---------------------------------
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a Restricted
-------------------------------------------------------------------
Physical Security pursuant to Rule 144A or Regulation S. One or more of the
-------------------------------------------------------
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 1 above; or
(b) [_] such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. [_] Check if Transferee will take an Interest in the Unrestricted Global
--------------------------------------------------------------------
Security The Transfer is being effected pursuant to and in accordance with Rule
--------
144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Securities will
no longer be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
5. [_] Check if Transferee will take an Interest in the Physical Global
----------------------------------------------------------------
Security that does not bear the Securities Act Legend One or more of the events
-----------------------------------------------------
specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
------------------
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] Interests in the
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____).
(b) [_] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [_] Interests in the:
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____), or
(iii) [_] Unrestricted Global Security (CUSIP _____); or
(b) [_] Physical Securities that bear the Securities Act Legend;
(c) [_] Physical Securities that do not bear the Securities Act Legend;
in accordance with the terms of the Indenture.
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
Attention: [ ]
[Name and Address of Registrar]
Re: 11 7/8% Senior Discount Notes due 2007
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of September 19,
1997 (the "Indenture"), among FrontierVision Holdings, L.P., FrontierVision
---------
Holdings Capital Corporation (the "Issuers") and U.S. Bank National Association
-------
(d/b/a Colorado National Bank), as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________ (the "Holder") owns and proposes to exchange the Securities
------
specified herein, in the Principal Amount at Maturity of $___ in such Security
(the "Exchange"). In the event the Holder holds Physical Securities, this
--------
Certificate is accompanied by one or more certificates aggregating at least the
Principal Amount at Maturity of Securities proposed to be Exchanged. In
connection with the Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Physical Securities or Interests in the Initial
Global Security for Physical Securities that do not bear the Securities Act
Legend or Unrestricted Global Securities
(a) [_] Check if Exchange is from Initial Global Securities to the
----------------------------------------------------------
Unrestricted Global Security. In connection with the Exchange of the Holder's
----------------------------
Initial Global Security for an interest in the Unrestricted Global Security in
an equal Principal Amount at Maturity, the Holder hereby certifies (i) the
Unrestricted Global Securities are being acquired for the Holder's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Initial Global Securities and pursuant
to and in accordance with the United States Securities Act of 1933, as amended
(the "Securities Act"), and (iii) the restrictions on transfer contained in the
--------------
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act.
(b) [_] Check if Exchange is from Restricted Physical Securities to an
--------------------------------------------------------------
Interest in the Unrestricted Global Security. In connection with the Holder's
--------------------------------------------
Exchange of Restricted Physical Securities for an interest in the Unrestricted
Global Security, (i) the interest in the Unrestricted Global Security is being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(c) [_] Check if Exchange is from Restricted Physical Securities to
-----------------------------------------------------------
Physical Securities that do not bear the Securities Act Legend. In connection
--------------------------------------------------------------
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. [_] Check if Exchange is from Restricted Physical Securities to Interests
---------------------------------------------------------------------
in an Initial Global Security. In connection with the Exchange of the Holder's
-----------------------------
Restricted Physical Security for interests in an Initial Global Security [[CHECK
ONE] [_] 144A Global Security, [_] Regulation S Global Security], with an equal
Principal Amount at Maturity, (i) the interests in the Initial Global Security
are being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in accordance
with the Securities Act. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Initial Global Security issued
will be subject to the restrictions on transfer enumerated in the Securities Act
Legend printed on the Initial Global Securities and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
-------------------------------
[Insert Name of Holder]
By:
----------------------------
Name:
Title:
Dated:
------------------
