(Exhibit 4.2)
================================================================================
CSC HOLDINGS, INC.,
Issuer,
to
THE BANK OF NEW YORK,
Trustee
---------
Indenture
Dated as of July 1, 1999
---------
$500,000,000
8 1/8% Senior Notes due 2009
8 1/8% Series B Senior Notes due 2009
Reconciliation and Tie Between Trust Indenture Act
of 1939 and Indenture, Dated as of July 1, 1999
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ................................. 608
(a)(2) ................................. 608
(b) ................................. 607, 609
Section 311(a) ................................. 612
(b) ................................. 612
Section 312(a) ................................. 607
(b) .................................. 607
(c) ................................. 701
Section 313 ................................. 702
Section 314(a) ................................. 703
(a)(4) ................................. 1013
(c)(1) ................................. 103
(c)(2) ................................. 103
(e) ................................. 103
Section 315(b) ................................. 601
Section 316(a)(last
sentence) ................................. 101 ("Outstanding")
(a)(1)(A) ................................. 502, 512
(a)(1)(B) ................................. 513
(b) ................................. 508
(c) ................................. 105(d)
Section 317(a)(1) ................................. 503
(a)(2) ................................. 504
(b) ................................. 1003
Section 318(a) ................................. 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
RECITALS.......................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.............................................1
Acquired Indebtedness........................................2
Affiliate....................................................2
Agent Members................................................2
Annualized Operating Cash Flow...............................2
Average Life.................................................2
Bank Credit Agreement........................................2
Banks........................................................3
Board of Directors...........................................3
Board Resolution.............................................3
Book-Entry Security..........................................3
Business Day.................................................3
Capital Stock................................................3
Capitalized Lease Obligation.................................3
Cash Flow Ratio..............................................4
Commission...................................................4
Common Stock.................................................4
Company ....................................................4
Company Request" or "Company Order...........................4
Consolidated Net Tangible Assets.............................4
Corporate Trust Office.......................................5
corporation..................................................5
Cumulative Cash Flow Credit..................................5
Cumulative Interest Expense..................................5
Debt.........................................................6
Default ....................................................6
Depository...................................................6
Disqualified Stock...........................................6
Event of Default.............................................6
Exchange Act.................................................6
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Page
Exchange Offer...............................................6
Exchange Offer Registration Statement........................7
Exchange Securities..........................................7
generally accepted accounting principles" or "...............7
Global Security..............................................7
guarantee....................................................7
Holder ....................................................7
Indebtedness.................................................7
Indenture....................................................8
Initial Purchasers...........................................8
Initial Securities...........................................8
Interest Payment Date........................................8
Interest Swap Obligations....................................8
Investment...................................................8
Lease ....................................................8
Lien ....................................................8
Mandatorily Redeemable Preferred Stock.......................9
Maturity ....................................................9
Officers' Certificate........................................9
Operating Cash Flow..........................................9
Opinion of Counsel..........................................10
Outstanding.................................................10
Paying Agent................................................10
Permitted Liens.............................................11
Person ...................................................13
Physical Security...........................................13
Predecessor Security........................................13
Preferred Stock.............................................13
Qualified Institutional Buyer" or "QIB......................13
Receivables and Related Assets..............................13
Refinancing Indebtedness....................................13
Registered Securities.......................................14
Registration Rights Agreement...............................14
Regular Record Date.........................................14
Regulation S Global Security................................14
Responsible Officer.........................................14
Restricted Payment..........................................14
Restricted Security.........................................15
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Page
Restricted Subsidiary.......................................15
Rule 144A Global Security...................................16
Securities Act..............................................16
Securities Issue Date.......................................16
Securitization Subsidiary...................................16
Security" and "Securities...................................16
Security Register" and "Security Registrar..................16
Senior Indebtedness.........................................16
Shelf Registration Statement................................17
Special Record Date.........................................17
Stated Maturity.............................................17
Stock Payment...............................................17
subsidiary..................................................17
Subsidiary..................................................17
Trust Indenture Act.........................................17
Trustee ...................................................18
Unrestricted Subsidiary.....................................18
Voting Stock................................................18
Section 102. Other Definitions......................................18
Section 103. Compliance Certificates and Opinions...................18
Section 104. Form of Documents Delivered to Trustee.................19
Section 105. Acts of Holders........................................20
Section 106. Notices, Etc. to Trustee and Company...................21
Section 107. Notice to Holders; Waiver..............................21
Section 108. Conflict of Any Provision of Indenture
with Trust Indenture Act.............................22
Section 109. Effect of Headings and Table of Contents...............22
Section 110. Successors and Assigns.................................22
Section 111. Separability Clause....................................22
Section 112. Benefits of Indenture..................................23
Section 113. Governing Law..........................................23
Section 114. Legal Holidays.........................................23
Section 115. No Recourse Against Others.............................23
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally; Incorporation of Form in Indenture....24
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Page
Section 202. Form of Face of Security...............................24
Section 203. Form of Reverse of Security............................27
Section 204. Form of Trustee's Certificate of Authentication........31
Section 205. Form of Legend on Restricted Securities................31
Section 206. Form of Legend for Book-Entry Securities...............33
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms........................................34
Section 302. Denominations..........................................35
Section 303. Execution, Authentication, Delivery and Dating.........35
Section 304. Temporary Securities...................................36
Section 305. Registration, Registration of Transfer and Exchange....37
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.......38
Section 307. Payment of Interest; Interest Rights Preserved.........39
Section 308. Persons Deemed Owners..................................40
Section 309. Cancellation...........................................41
Section 310. Computation of Interest................................41
Section 311. Registration Rights of Holders of Initial Securities...41
Section 312. CUSIP Numbers..........................................41
Section 313. Book-Entry Provisions for Global Securities............41
Section 314. Special Transfer Provisions............................43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture................46
Section 402. Application of Trust Money.............................47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default......................................47
Section 502. Acceleration of Maturity; Rescission...................49
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Page
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...........................50
Section 504. Trustee May File Proofs of Claim.......................51
Section 505. Trustee May Enforce Claims Without
Possession of Securities.............................52
Section 506. Application of Money Collected.........................52
Section 507. Limitation on Suits....................................52
Section 508. Unconditional Right of Holders to Receive
Principal and Interest...............................53
Section 509. Restoration of Rights and Remedies.....................53
Section 510. Rights and Remedies Cumulative.........................54
Section 511. Delay or Omission Not Waiver...........................54
Section 512. Control by Holders.....................................54
Section 513. Waiver of Past Defaults................................54
Section 514. Undertaking for Costs..................................55
Section 515. Waiver of Stay, Extension or Usury Laws................55
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.....................................56
Section 602. Certain Rights of Trustee..............................56
Section 603. Not Responsible for Recitals
or Issuance of Securities............................57
Section 604. May Hold Securities....................................58
Section 605. Money Held in Trust....................................58
Section 606. Compensation and Reimbursement.........................58
Section 607. Conflicting Interests..................................59
Section 608. Corporate Trustee Required; Eligibility................59
Section 609. Resignation and Removal; Appointment of Successor......60
Section 610. Acceptance of Appointment by Successor.................61
Section 611. Merger, Conversion, Consolidation
or Succession to Business............................62
Section 612. Preferential Collection of Claims Against Company......62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders...........63
Section 702. Reports by Trustee.....................................63
Section 703. Reports by Company.....................................63
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms................................64
Section 802. Successor Substituted..................................65
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.....65
Section 902. Supplemental Indentures with Consent of Holders........66
Section 903. Execution of Supplemental Indentures...................67
Section 904. Effect of Supplemental Indentures......................67
Section 905. Conformity with Trust Indenture Act....................68
Section 906. Reference in Securities to Supplemental Indentures.....68
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.....................68
Section 1002. Maintenance of Office or Agency.......................68
Section 1003. Money for Security Payments to Be Held in Trust.......69
Section 1004. Corporate Existence...................................70
Section 1005. Payment of Taxes and Other Claims.....................70
Section 1006. Maintenance of Properties.............................71
Section 1007. Limitation on Indebtedness............................71
Section 1008. Limitation on Liens...................................71
Section 1009. Limitation on Restricted Payments.....................72
Section 1010. Limitation on Investments in
Unrestricted Subsidiaries and Affiliates............73
Section 1011. Transactions with Affiliates..........................73
Section 1012. Provision of Financial Statements.....................73
Section 1013. Statement as to Compliance............................74
Section 1014. Waiver of Certain Covenants...........................74
Section 1015. Statement by Officers as to Default...................75
vii
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. No Right of Redemption................................75
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Option to Effect Defeasance or Covenant Defeasance....75
Section 1202. Defeasance and Discharge..............................75
Section 1203. Covenant Defeasance...................................76
Section 1204. Conditions to Defeasance or Covenant Defeasance.......76
Section 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.......................78
Section 1206. Reinstatement.........................................79
TESTIMONIUM...................................................................73
SIGNATURES AND SEALS..........................................................73
ACKNOWLEDGMENTS...............................................................73
EXHIBIT A List of Restricted Subsidiaries
EXHIBIT B Form of Registration Rights Agreement
INDENTURE dated as of July 1, 1999 between CSC Holdings, Inc., a Delaware
corporation (hereinafter called the "Company"), and The Bank of New York, a New
York banking corporation, trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 8 1/8%
Senior Notes due 2009 (hereinafter called the "Initial Securities") and its 8
1/8% Series B Senior Notes due 2009 (the "Exchange Securities," and together
with the Initial Securities, the "Securities"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture;
Upon the issuance of the Exchange Securities, if any, or the effectiveness
of the Exchange Offer Registration Statement (as defined herein) or, under
certain circumstances, the effectiveness of the Shelf Registration Statement (as
defined herein), this Indenture will be subject to, and shall be governed by,
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall to the extent applicable be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
2
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles and
except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as were generally accepted in
the United States as of August 21, 1997; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person is merged with or into the Company or a Subsidiary or becomes a
Subsidiary or (b) assumed in connection with the acquisition of assets from such
Person.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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 Members" shall have the meaning set forth in Section 313.
"Annualized Operating Cash Flow" means, for any period of three complete
consecutive calendar months, an amount equal to Operating Cash Flow for such
period multiplied by four.
"Average Life" means, at any date of determination with respect to any debt
security, the quotient obtained by dividing (a) the sum of the products of (i)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (ii) the amount
of such principal payment by (b) the sum of all such principal payments.
3
"Bank Credit Agreement" means the Sixth Amended and Restated Credit
Agreement, dated as of May 28, 1998, among the Company, the Restricted
Subsidiaries party thereto, the banks party thereto, Toronto Dominion (Texas),
Inc., as Arranging Agent and as Administrative Agent, The Bank of New York, The
Bank of Nova Scotia, The Canadian Imperial Bank of Commerce, NationsBank, N.A.
and The Chase Manhattan Bank, as Managing Agents, Bank of Montreal, Chicago
Branch, Barclays Bank plc, Fleet Bank, N.A. and Royal Bank of Canada, as Agents,
Banque Paribas, Credit Lyonnais, BankBoston N.A., The First National Bank of
Chicago, Mellon Bank, N.A. and Societe Generale, New York Branch, as Co-Agents,
and The Canadian Imperial Bank of Commerce, The Chase Manhattan Bank and
NationsBank, N.A., as Co-Syndication Agents and the First Amended and Restated
Credit Agreement, dated as of May 28, 1998, by and among Cablevision MFR, Inc.,
the Guarantors party thereto, the Lenders from time to time party thereto and
Toronto Dominion Bank (Texas), Inc., as Arranging Agent and as Administrative
Agent, The Bank of New York, The Bank of Nova Scotia, The Canadian Imperial Bank
of Commerce, NationsBank, N.A. and The Chase Manhattan Bank, as Managing Agents,
Bank of Montreal, Chicago Branch, Barclays Bank plc, Fleet Bank, N.A. and Royal
Bank of Canada, as Agents, Banque Paribas, Credit Lyonnais, BankBoston N.A., The
First National Bank of Chicago, Mellon Bank, N.A. and Societe Generale, New York
Branch, as Co-Agents, and the Bank of New York and the Bank of Nova Scotia, as
Co-Syndication Agents, both agreements as in effect on the date hereof and as
such agreements may be amended or replaced from time to time.
"Banks" means the lenders from time to time who are parties to the Bank
Credit Agreement.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Book-Entry Security" means a Security represented by a Global Security and
registered in the name of the nominee of the Depository.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
4
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock whether now outstanding or issued after the date of this
Indenture, including, without limitation, all Common Stock, Preferred Stock and
Disqualified Stock.
"Capitalized Lease Obligation" means any obligation of a Person to pay rent
or other amounts under a lease with respect to any property (whether real,
personal or mixed) acquired or leased by such Person and used in its business
that is required to be accounted for as a liability on the balance sheet of such
Person in accordance with generally accepted accounting principles and the
amount of such Capitalized Lease Obligation shall be the amount so required to
be accounted for as a liability.
"Cash Flow Ratio" means, as at any date, the ratio of (a) the sum of the
aggregate outstanding principal amount of all Indebtedness of the Company and
the Restricted Subsidiaries determined on a consolidated basis but excluding all
Interest Swap Obligations entered into by the Company or any Restricted
Subsidiary and one of the Banks outstanding on such date plus (but without
duplication of Indebtedness supported by letters of credit) the aggregate
undrawn face amount of all letters of credit outstanding on such date to (b)
Annualized Operating Cash Flow determined as at the last day of the most recent
month for which financial information is available.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests and participations (however designated and whether voting or
non-voting) in such Person's common equity, whether now Outstanding or issued
after the date of this Indenture, and includes, without limitation, all series
and classes of such common stock.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person. To the extent necessary to comply with the requirements
of the provisions of Trust Indenture Act Sections 310 through 317 as they are
applicable to the Company, the term "Company" shall include any other obligor
with respect to the Securities for the purposes of complying with such
provisions.
5
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (a) by its Chairman, Chief Executive Officer,
a Vice Chairman, its President or a Vice President and (b) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided, however, that such written request or order may be signed
by any two of the officers or directors listed in clause (a) above in lieu of
being signed by one of such officers or directors listed in such clause (a) and
one of the officers listed in clause (b) above.
"Consolidated Net Tangible Assets" of any Person means, as of any date, (a)
all amounts that would be shown as assets on a consolidated balance sheet of
such Person and its Restricted Subsidiaries prepared in accordance with
generally accepted accounting principles, less (b) the amount thereof
constituting goodwill and other intangible assets as calculated in accordance
with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, partnerships, limited
liability companies, companies and business trusts.
"Cumulative Cash Flow Credit" means the sum of:
(a) cumulative Operating Cash Flow during the period commencing on
July 1, 1988 and ending on the last day of the most recent month preceding
the date of the proposed Restricted Payment for which financial information
is available or, if cumulative Operating Cash Flow for such period is
negative, minus the amount by which cumulative Operating Cash Flow is less
than zero, plus
(b) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, plus
(c) the aggregate net proceeds received by the Company from the
issuance or sale (other than to a Restricted Subsidiary) of its Capital
Stock (other than Disqualified Stock) on or after January 1, 1992, upon the
conversion of, or exchange for, Indebtedness of the Company or any
Restricted Subsidiary or from the exercise of any options, warrants or
other rights to acquire Capital Stock of the Company.
6
For purposes of this definition, the net proceeds in property other than cash
received by the Company as contemplated by clauses (b) and (c) above shall be
valued at the fair market value of such property (as determined by the Board of
Directors, whose good faith determination shall be conclusive) at the date of
receipt by the Company.
"Cumulative Interest Expense" means, for the period commencing on July 1,
1988 and ending on the last day of the most recent month preceding the proposed
Restricted Payment for which financial information is available, the aggregate
of the interest expense of the Company and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with generally accepted
accounting principles, including interest expense attributable to Capitalized
Lease Obligations.
"Debt" with respect to any Person means, without duplication, any
liability, whether or not contingent, (a) in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereto), but excluding
reimbursement obligations under any surety bond, (b) representing the balance
deferred and unpaid of the purchase price of any property (including pursuant to
Capitalized Lease Obligations), except any such balance that constitutes a trade
payable, (c) under Interest Swap Agreements (as defined in the Bank Credit
Agreement) entered into pursuant to the Bank Credit Agreement, (d) under any
other agreement related to the fixing of interest rates on any Indebtedness,
such as an interest swap, cap or collar agreement (if and to the extent any of
the foregoing liabilities would appear as a liability upon a balance sheet of
such Person prepared on a consolidated basis in accordance with generally
accepted accounting principles) or (e) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not the guarantee would appear on such balance sheet). "Debt" does not
include (a) Disqualified Stock, (b) any liability for federal, state or other
taxes owed or owing by such person or (c) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities).
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form of
one or more Book-Entry Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
7
"Disqualified Stock" means any Capital Stock of the Company or any
Restricted Subsidiary which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the maturity date of the Securities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Securities containing terms substantially
identical to the Initial Securities (except that (a) such Exchange Securities
shall not contain terms with respect to transfer restrictions and shall be
registered under the Securities Act, and (b) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated) that are
issued and exchanged for the Initial Securities in accordance with the Exchange
Offer, as provided for in the Registration Rights Agreement and this Indenture.
"generally accepted accounting principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
were in effect as of August 15, 1997.
"Global Security" means one or more Securities evidencing all or a part of
the Securities to be issued as Book-Entry Securities, issued to the Depository
in accordance with Section 303 and bearing the legend prescribed in Section 206
and, in the case of a Restricted Security, the legend prescribed in Section 205.
"guarantee" means, as applied to any obligation, (a) 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 or (b) an agreement, direct or indirect, contingent or
otherwise, providing assurance of the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such obligation,
8
including, without limiting the foregoing, the payment of amounts drawn down by
letters of credit. Notwithstanding anything herein to the contrary, a guarantee
shall not include any agreement solely because such agreement creates a Lien on
the assets of any Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor could be
held liable under such guarantee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" with respect to any Person, means the Debt of such Person;
provided that, for purposes of the definition of "Indebtedness" (including the
term "Debt" to the extent incorporated in such definition) and for purposes of
the definition of Event of Default, the term "guarantee" shall not be
interpreted to extend to a guarantee under which recourse is limited to the
Capital Stock of an entity that is not a Restricted Subsidiary.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxx Sachs & Co., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx
Xxxxx Barney Inc.
"Initial Securities" has the meaning specified in the recitals to this
Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap Obligations" means, with respect to any Person, the
obligations of such Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments made
by such Person calculated by applying a fixed or a floating rate of interest on
the same notional amount.
"Investment" means any advance, loan, account receivable (other than an
account receivable arising in the ordinary course of business) or other
extension of credit (excluding, however, accrued and unpaid interest in respect
of any advance, loan or other extension of credit) or any capital contribution
to (by means of transfers of property to others,
9
or payments for property or services for the account or use of others, or
otherwise), any purchase or ownership of any stocks, bonds, notes, debentures or
other securities (including, without limitation, any interests in any
partnership, joint venture or joint adventure) of, or any bank accounts with or
guarantee of any Indebtedness or other obligations of, any Unrestricted
Subsidiary or Affiliate that is not a Subsidiary; provided that (a) the term
"Investment" shall not include any transaction that would otherwise constitute
an Investment of the Company or a Subsidiary to the extent that the
consideration provided by the Company or such Subsidiary in connection therewith
shall consist of Capital Stock of the Company (other than Disqualified Stock)
and (b) the term "guarantee" shall not be interpreted to extend to a guarantee
under which recourse is limited to the Capital Stock of an entity that is not a
Restricted Subsidiary.
"Lease" means any capital lease, operating lease, equipment lease, real
property lease or other lease.
"Lien" means any lien, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature of a security interest and any agreement to give any security
interest). A Person shall be deemed to own subject to a Lien any property which
such Person has acquired or holds subject to the interest of a vendor or lessor
under a conditional sale agreement, capital lease or other title retention
agreement.
"Mandatorily Redeemable Preferred Stock" means the Company's Series H
Redeemable Exchangeable Preferred Stock, Series M Redeemable Exchangeable
Preferred Stock and any series of preferred stock of the Company issued in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise acquire, all or any portion of the Series H Redeemable Exchangeable
Preferred Stock, Series M Redeemable Exchangeable Preferred Stock or any other
Mandatorily Redeemable Preferred Stock.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided whether at the Stated Maturity, by declaration of acceleration or
otherwise.
"Officers' Certificate" means a certificate signed by (a) the Chairman,
Chief Executive Officer, a Vice Chairman, the President, a Vice President or the
Treasurer of the Company and (b) the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee; provided, however, that such certificate
may be signed by two of the officers or directors listed in clause (a) above in
lieu of being signed by one of such officers or directors listed in such clause
(a) and one of the officers listed in clause (b) above.
10
"Operating Cash Flow" means, for any period, the sum of the following for
the Company and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting principles
(except for the amortization of deferred installation income which shall be
excluded from the calculation of Operating Cash Flow for all purposes of this
Indenture): (a) aggregate operating revenues minus (b) aggregate operating
expenses (including technical, programming, sales, selling, general and
administrative expenses and salaries and other compensation, net of amounts
allocated to Affiliates, paid to any general partner, director, officer or
employee of the Company or any Restricted Subsidiary, but excluding interest,
depreciation and amortization and the amount of non-cash compensation in respect
of the Company's employee incentive stock programs for such period (not to
exceed in the aggregate for any calendar year 7% of the Operating Cash Flow for
the previous calendar year) and, to the extent otherwise included in operating
expenses, any losses resulting from a writeoff or writedown of Investments by
the Company or any Restricted Subsidiary in Affiliates). For purposes of
determining Operating Cash Flow, there shall be excluded all management fees
until actually paid to the Company or any Restricted Subsidiary in cash.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company. Each such opinion shall include the statements provided for in
Trust Indenture Act section 314 to the extent applicable.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or purchase
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
(c) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Twelve; and
11
(d) Securities paid pursuant to Section 306, Securities in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities, or any Affiliate of the Company, or such
other obligor, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, direction, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permitted Liens" means the following types of Liens:
(a) Liens existing on the date of this Indenture;
(b) Liens on shares of the Capital Stock of an entity that is not a
Restricted Subsidiary, which Liens solely secure a guarantee by the Company
or a Restricted Subsidiary, or both, of Indebtedness of such entity;
(c) Liens on Receivables and Related Assets (and proceeds thereof)
securing only Indebtedness otherwise permitted to be incurred by a
Securitization Subsidiary;
(d) Liens on shares of the Capital Stock of a Subsidiary securing
Indebtedness under the Bank Credit Agreement or any renewal or replacement
of the Bank Credit Agreement;
(e) Liens granted in favor of the Company or any Restricted
Subsidiary;
(f) Liens securing the Securities;
12
(g) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness
by the Company or a Restricted Subsidiary; provided that such Lien does not
extend to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with the incurrence
of such Acquired Indebtedness;
(h) Liens securing Interest Swap Obligations or "margin stock", as
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System;
(i) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business of the Company or any Restricted Subsidiary
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceedings;
(j) Liens for taxes, assessments, government charges or claims not yet
due or that are being contested in good faith by appropriate proceedings;
(k) zoning restrictions, easements, rights-of-way, restrictions and
other similar charges or encumbrances or minor defects in title not
interfering in any material respect with the business of the Company or any
of its Restricted Subsidiaries;
(l) Liens arising by reason of any judgment, decree or order of any
court, arbitral tribunal or similar entity so long as any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(m) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security or similar legislation;
(n) Liens securing the performance of bids, tenders, Leases,
contracts, franchises, public or statutory obligations, surety, stay or
appeal bonds, or other similar obligations arising in the ordinary course
of business;
(o) Leases under which the Company or any Restricted Subsidiary is the
lessee or the lessor;
13
(p) purchase money mortgages or other purchase money liens (including
without limitation any Capitalized Lease Obligations) upon any fixed or
capital assets acquired after the date of this Indenture, or purchase money
mortgages (including without limitation Capitalized Lease Obligations) on
any such assets hereafter acquired or existing at the time of acquisition
of such assets, whether or not assumed, so long as (i) such mortgage or
lien does not extend to or cover any other asset of the Company or any
Restricted Subsidiary and (ii) such mortgage or lien secures the obligation
to pay the purchase price of such asset, interest thereon and other charges
incurred in connection therewith (or the obligation under such Capitalized
Lease Obligation) only;
(q) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(r) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Company
or any of its Restricted Subsidiaries, including rights of offset and
set-off;
(s) Liens to secure other Indebtedness; provided, however, that the
principal amount of any Indebtedness secured by such Liens, together with
the principal amount of any Indebtedness refinancing any Indebtedness
incurred under this clause (s) as permitted by clause (t) below (and
successive refinancings thereof), may not exceed 15% of the Company's
Consolidated Net Tangible Assets as of the last day of the Company's most
recently completed fiscal year for which financial information is
available; and
(t) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (s); provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall
not extend to any additional property or assets.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Physical Security" shall have the meaning set forth in Section 303.
14
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred or preference stock, whether now Outstanding or issued after
the date of this Indenture, and includes, without limitation, all classes and
series of preferred or preference stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"Receivables and Related Assets" means (a) accounts receivable,
instruments, chattel paper, obligations, general intangibles, equipment and
other similar assets, including interests in merchandise or goods, the sale or
Lease of which gives rise to the foregoing, related contractual rights,
guarantees, insurance proceeds, collections and other related assets, (b)
equipment, (c) inventory and (d) proceeds of all of the foregoing.
"Refinancing Indebtedness" means, with respect to any series of Securities,
Indebtedness of the Company incurred to redeem, repurchase, defease or otherwise
acquire or retire for value other Indebtedness that is subordinate in right of
payment to such Securities, so long as any such new Indebtedness (a) is made
subordinate to such Securities at least to the same extent as the Indebtedness
being refinanced and (b) does not have (i) an Average Life less than the Average
Life of the Indebtedness being refinanced, (ii) a final scheduled maturity
earlier than the final scheduled maturity of the Indebtedness being refinanced,
or (iii) permit redemption at the option of the holder earlier than the earlier
of (A) the final scheduled maturity of the Indebtedness being refinanced or (B)
any date of redemption at the option of the holder of the Indebtedness being
refinanced.
"Registered Securities" means Securities issued or sold in a transaction
pursuant to an effective registration statement under the Securities Act of
1933, as amended, as contemplated in the Registration Rights Agreement, and any
Exchange Security subsequently issued in exchange for or upon transfer of any
such Security.
"Registration Rights Agreement" means the Registration Rights Agreement
dated July 13, 1999 among the Company and the Initial Purchasers, a form of
which Registration Rights Agreement is attached hereto as Exhibit B.
15
"Regular Record Date" for the interest payable on any Interest Payment Date
means the January 1 or July 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Regulation S Global Security" shall have the meaning set forth in Section
303.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers or assigned by the Trustee to administer corporate trust
matters at its Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Payment" means
(a) any Stock Payment by the Company or a Restricted Subsidiary;
(b) any direct or indirect payment to redeem, purchase, defease or
otherwise acquire or retire for value, or permit any Restricted Subsidiary
to redeem, purchase, defease or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Indebtedness of the Company that is subordinate in right
of payment to such Securities; provided, however, that any direct or
indirect payment to redeem, purchase, defease or otherwise acquire or
retire for value, or permit any Restricted Subsidiary to redeem, purchase,
defease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness that is subordinate in right of payment to such Securities
shall not be a Restricted Payment if either (i) after giving effect
thereto, the ratio of the Senior Indebtedness of the Company and the
Restricted Subsidiaries to Annualized Operating Cash Flow determined as of
the last day of the most recent month for which financial information is
available is less than or equal to 5 to 1 or (ii) such subordinate
Indebtedness is redeemed, purchased, defeased or otherwise acquired or
retired in exchange for, or out of (x) the proceeds of a sale (within one
year before or 180 days after such redemption, purchase, defeasance,
acquisition or retirement) of, Refinancing Indebtedness, or Capital Stock
of the Company or warrants, rights or options to acquire Capital Stock of
the Company or (y) any source of funds other than the incurrence of
Indebtedness;
16
(c) any direct or indirect payment to redeem, purchase, defease or
otherwise acquire or retire for value any Disqualified Stock at its
mandatory redemption date or other maturity date if and to the extent that
Indebtedness is incurred to finance such redemption, purchase, defeasance
or other acquisition or retirement; provided, however, that the redemption,
purchase, defeasance or other acquisition or retirement of Mandatorily
Redeemable Preferred Stock at its mandatory redemption or other maturity
date shall not be a Restricted Payment if and to the extent any
Indebtedness incurred to finance all or a portion of the purchase or
redemption price does not have a final scheduled maturity date, or permit
redemption at the option of the holder thereof, earlier than the final
scheduled maturity of such Securities.
Notwithstanding the foregoing, Restricted Payments shall not include (a)
payments by any Restricted Subsidiary to the Company or any other Restricted
Subsidiary or (b) any Investment or designation of a Restricted Subsidiary as an
Unrestricted Subsidiary permitted under Section 1010.
"Restricted Security" shall have the meaning set forth in Section 205.
"Restricted Subsidiary" means any Subsidiary, whether existing on the date
hereof or created subsequent hereto, designated from time to time by the Company
as a "Restricted Subsidiary" and the initial Restricted Subsidiaries designated
by the Company are set forth on Exhibit A; provided, however, that no Subsidiary
that is not a Securitization Subsidiary can be or remain so designated unless
(a) at least 67% of each of the total equity interest and the voting control of
such Subsidiary is owned, directly or indirectly, by the Company or another
Restricted Subsidiary and (b) such Subsidiary is not restricted, pursuant to the
terms of any loan agreement, note, indenture or other evidence of indebtedness,
from (i) paying dividends or making any distribution on such Subsidiary's
Capital Stock or other equity securities or paying any Indebtedness owed to the
Company or to any Restricted Subsidiary, (ii) making any loans or advances to
the Company or any Restricted Subsidiary or (iii) transferring any of its
properties or assets to the Company or any Restricted Subsidiary (it being
understood that a financial covenant any of the components of which are directly
impacted by the taking of the action (e.g., the payment of a dividend) itself
(such as a minimum net worth test) would be deemed to be a restriction on the
foregoing actions, while a financial covenant none of the components of which is
directly impacted by the taking of the action (e.g., the payment of a dividend)
itself (such as a debt to cash flow test) would not be deemed to be a
restriction on the foregoing actions); and provided further that the Company
may, from time to time, redesignate any Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with Section 1010.
17
"Rule 144A Global Security" shall have the meaning set forth in Section
303.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Issue Date" means July 13, 1999 with respect to the Initial
Securities and the date of original issuance of the Exchange Securities with
respect to the Exchange Securities.
"Securitization Subsidiary" means a Restricted Subsidiary that is
established for the limited purpose of acquiring and financing Receivables and
Related Assets and engaging in activities ancillary thereto; provided that (a)
no portion of the Indebtedness of a Securitization Subsidiary is guaranteed by
or is recourse to the Company or any other Restricted Subsidiary (other than
recourse for customary representations, warranties, covenants and indemnities,
none of which shall relate to the collectibility of the Receivables and Related
Assets) and (b) none of the Company or any other Restricted Subsidiary has any
obligation to maintain or preserve such Securitization Subsidiary's financial
condition.
"Security" and "Securities" have the meaning set forth in the second
paragraph of this Indenture, such terms to include both the Initial Securities
and the Exchange Securities.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means, with respect to any Person, all principal of
(premium, if any) and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to such
Person whether or not a claim for post filing interest is allowed in such
proceedings) with respect to all Indebtedness of such Person; provided that
Senior Indebtedness shall not include (a) any Indebtedness of such Person that,
by its terms or the terms of the instrument creating or evidencing such
Indebtedness, is expressly subordinate in right of payment to the Securities,
(b) any guarantee of Indebtedness of any subsidiary of such Person if recourse
against such guarantee is limited to the Capital Stock or other equity interests
of such subsidiary, (c) any obligation of such Person to any subsidiary of such
Person or, in the case of a Restricted Subsidiary, to the Company or any other
Subsidiary or (d) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect to
any other Indebtedness or other obligation of such Person.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
18
"Special Record Date" means a date fixed by the Trustee for the payment of
any Defaulted Interest pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Stock Payment" means, with respect to any Person, the payment or
declaration of any dividend, either in cash or in property (except dividends
payable in Common Stock or common shares of Capital Stock of such Person), or
the making by such Person of any other distribution, on account of any shares of
any class of its Capital Stock, now or hereafter outstanding, or the redemption,
purchase, retirement or other acquisition or retirement for value by such
Person, directly or indirectly, of any shares of any class of its Capital Stock,
now or hereafter outstanding, other than the redemption, purchase, defeasance or
other acquisition or retirement for value of any Disqualified Stock at its
mandatory redemption date or other maturity date.
"subsidiary" means, as to a particular parent entity at any time, any
entity of which more than 50% of the outstanding Voting Stock or other equity
interest entitled ordinarily to vote in the election of the directors or other
governing body (however designated) of such entity is at the time beneficially
owned or controlled directly or indirectly by such parent corporation, by one or
more such entities or by such parent corporation and one or more such entities.
"Subsidiary" means any subsidiary of the Company.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that, in the event that the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
19
"Voting Stock" means any Capital Stock having voting power under ordinary
circumstances to vote in the election of a majority of the directors of a
corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
SECTION 102. OTHER DEFINITIONS.
Defined
Term in Section
"Act"...................................................... 105
"Bankruptcy Law"........................................... 501
"covenant defeasance"...................................... 1203
"Custodian"................................................ 501
"defeasance"............................................... 1202
"Defaulted Interest"....................................... 307
"incorporated provision"................................... 108
"redesignation of a Restricted Subsidiary"................. 1010
"Restricted Security"...................................... 205
"Security Register"........................................ 305
"Security Registrar"....................................... 305
"successor"................................................ 801
"U.S. Government Obligations".............................. 1204
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
20
Every certificate or opinion (other than the certificates required by
Section 1013) with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
21
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Trust Indenture Act Section 315) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 105.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand,
22
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security or the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 106. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the agents of the Banks or the Company
shall be sufficient for every purpose hereunder if made, given, furnished
or delivered, in writing (which may be via facsimile), to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered in writing to the Company addressed to
it c/o CSC Holdings, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Secretary, or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any
23
notice when mailed to a Holder in the aforesaid manner shall be conclusively
deemed to have been received by such Holder whether or not actually received by
such Holder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 108. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Trust Indenture Act Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such
Trust Indenture Act Sections, such imposed duties or incorporated provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its respective successors and assigns, whether so expressed or not.
24
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, any date established for
payment of Defaulted Interest pursuant to Section 307, or any Maturity with
respect to any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, or date established for payment of Defaulted Interest pursuant to Section
307, or Maturity, and no interest shall accrue with respect to such payment for
the period from and after such Interest Payment Date, or date established for
payment of Defaulted Interest pursuant to Section 307, or Maturity, as the case
may be, to the next succeeding Business Day.
25
SECTION 115. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY; INCORPORATION OF FORM IN INDENTURE.
The Securities and the Trustee's certificate of authentication with respect
thereto shall be in substantially the forms set forth in this Article, with such
appropriate legends, insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security. Each Security shall
be dated the date of its authentication.
The definitive Securities shall be typewritten, printed, lithographed,
engraved or otherwise produced or produced by any combination of these methods
or may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. FORM OF FACE OF SECURITY.
CSC HOLDINGS, INC.
8 1/8% [Series B]* Senior Notes due 2009
No. _____ $__________
--------
* Include only for Exchange Securities.
reena
26
CUSIP No. __________
CSC Holdings, Inc., a Delaware corporation (herein called the "Company",
which term includes any successor entity under this Indenture hereinafter
referred to), for value received, hereby promises to pay to _________________ or
registered assigns the principal sum of ______ Dollars on July 15, 2009, at the
office or agency of the Company referred to below, and to pay interest thereon
on January 15, 2000 and semiannually thereafter, on January 15 and July 15 in
each year from the Securities Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for at the rate of
8 1/8% per annum until the principal hereof is paid or duly provided for, and
(to the extent lawful) to pay on demand interest on any overdue interest at the
rate borne by the Securities from the date of the Interest Payment Date on which
such overdue interest becomes payable to the date payment of such interest has
been made or duly provided for.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated July 13, 1999 (the "Registration Rights
Agreement"), between the Company and the Initial Purchasers named therein. In
the event that either (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") with respect to an exchange offer (the
"Exchange Offer") for this Initial Security is not filed with the Securities and
Exchange Commission (the "Commission") on or prior to September 10, 1999 or (ii)
the Exchange Offer is not consummated or a registration statement under the
Securities Act with respect to resales of this Security (the "Shelf Registration
Statement") is not declared effective by the Commission on or prior to January
9, 2000, in either case in accordance with the Registration Rights Agreement,
the aforesaid interest rate borne by this Security shall be increased by
one-quarter of one percent per annum for the first 30 days following September
10, 1999 in the case of (i) above, or the first 90 days following January 9,
2000 in the case of (ii) above. Such interest rate will increase by an
additional one-quarter of one percent per annum at the beginning of each
subsequent 30-day period in the case of (i) above, or 90-day period in the case
of (ii) above, up to a maximum aggregate increase of one percent per annum. Upon
(x) the filing of a registration statement with respect to the Exchange Offer or
(y) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, the interest rate borne by this
Security will be reduced to 8 1/8 per annum.]*
If any interest has accrued on this Security in respect of any period prior
to the issuance of this Security, such interest will be payable in respect of
such period at the rate or rates borne by the Predecessor Security surrendered
in exchange for this Security from time to
--------
* Include only for Initial Securities.
27
time during such period. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 1 or July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and interest on
such defaulted interest at the interest rate borne by this Security, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payment
of the principal of and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in The City of New York, or at
such other office or agency of the Company as may be maintained 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 payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under this Indenture, or be valid or
obligatory for any purpose.
28
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CSC HOLDINGS, INC.
By _______________________
Attest:
By ____________________
29
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8 1/8% [Series B]* Senior Notes due 2009 (herein
called the "Securities"), limited (except as otherwise provided in this
Indenture referred to below) in aggregate principal amount to $500,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of July 1, 1999, between the Company and The Bank of New York, trustee (herein
called the "Trustee", which term includes any successor trustee under this
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee, the
holders of the Senior Indebtedness and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
[This Security is exchangeable under certain circumstances as provided in
the Indenture for the Company's 8 1/8% Series B Senior Notes due 2009 (herein
called the "Exchange Securities", issued under the Indenture. Unless the context
otherwise requires, the Securities and Exchange Securities shall constitute one
series for all purposes under the Indenture, including without limitation
amendments and waivers.]**
This Security is not subject to redemption at the option of the Company
prior to Maturity.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in this Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
This Security does not have the benefit of any sinking fund obligations.
--------
* Include only for Exchange Securities.
** Include only for Initial Securities.
30
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable on the Security Register of
the Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for such purpose in The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp or similar issue or transfer taxes or other
governmental charges payable in connection with any registration of transfer or
exchange.
31
Prior to the time of due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of laws principles
thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Certificate of Transfer**
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
this Security to
--------------------------------------------------------------------------------
(Please typewrite or print name and taxpayer identification number)
--------------------------------------------------------------------------------
(Please typewrite or print address)
and hereby irrevocably constitutes and appoints ________________________________
his attorney to transfer the same on the books of the Company, with full power
of substitution in the premises.
In connection with any transfer of all or any portion of the Security
evidenced by this certificate for as long as such Security is a Restricted
Security, the undersigned confirms that such Security is being transferred:
[ ] (a) Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act");
or
--------
** Include only for Initial Securities.
32
[ ] (b) Pursuant to offers and sales to non-U.S. Persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act;
Unless one of the boxes above is checked, the Trustee will refuse to
register all or any portion of the Security evidenced by this certificate in the
name of any person other than the registered holder thereof (or hereof);
provided, however, that the Trustee may, in its sole discretion, register the
transfer of such Security if it has received such certifications, legal opinions
and/or other information as it has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
Dated:
Signature _____________________
NOTE: The signature to this assignment must correspond with the name as written
upon the face of this Security in every particular, without alteration or
enlargement, or any change whatever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:___________________ ____________________________________
To be signed by an executive officer
SCHEDULE OF EXCHANGES FOR DEFINITIVE SECURITIES
The following exchanges of a part of this Security in global form for
definitive Securities or of definitive Securities for a part of this Security in
global form have been made:
33
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Security authorized
Principal Principal in global form signatory of
Amount of Amount of following such Trustee or
Date of this Security this Security decrease (or Securities
Exchange in global form in global form increase) Custodian
-------- -------------- -------------- --------- ---------
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By _______________________
Authorized Signatory
Dated:
SECTION 205. FORM OF LEGEND ON RESTRICTED SECURITIES.
During the period beginning on July 13, 1999 and ending on the later of
July 13, 2001 and the date two years after the last date on which the Company or
any Affiliate of the Company was the owner of an Initial Security (or any
Predecessor Security), any such Initial Security issued or owned during the
period set forth above, as the case may be, and any Initial Security issued upon
registration of transfer of, or in exchange for, or in lieu of, such Initial
Security shall be deemed a "Restricted Security" and shall be subject to the
restrictions on transfer provided in the legend set forth below; provided,
however, that the term "Restricted Security" shall not include (a) any Initial
Security which is issued upon transfer of, or in exchange for, any Initial
Security which is not a Restricted Security or (b) any Initial Security as to
which such restrictions on transfer have been terminated in accordance with
Section 314 or (c) any Exchange Security issued pursuant to an Exchange Offer.
Any Restricted Security shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN
34
THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000) TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED
IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
("RULE 144A")), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE
ORIGINAL ISSUE HEREOF ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A, (D) OUTSIDE THE UNITED STATES
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION
PURSUANT TO REGULATION S UNDER THE
35
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
SECTION 206. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000) TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED
IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
36
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $500,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 303, 304, 305, 306 or
906.
The Initial Securities shall be known and designated as the "8 1/8% Senior
Notes due 2009" and the Exchange Securities shall be known and designated as the
"8 1/8% Series B Senior Notes due 2009" of the Company. Their Stated Maturity
shall be July 15, 2009, and they shall bear interest at the rate of 8 1/8% per
annum (except as otherwise provided for in the form of Security) from the
Security Issue Date, or the most recent Interest Payment Date to which interest
has been paid or duly provided for on a given Security or a Security surrendered
in exchange for such Security, as the case may be, payable on January 15, 2000
and semiannually thereafter on January 15 and July 15 in each year and at said
Stated Maturity, until the principal thereof is paid or duly provided for. The
initial Interest Payment Date for any Security shall be the first January 15 or
July 15 occurring after the Security Issue Date for such Security. The Initial
Securities and the Exchange Securities shall rank pari passu.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company maintained for such purpose in The City of New
York, or at such other office or agency of the Company as may be maintained for
such purpose; provided, however, that, at the option of the Company, cash
interest may be paid by check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Security Register.
The Securities are not subject to redemption at the option of the Company.
At the election of the Company, the entire indebtedness represented by the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Twelve.
The Securities will be senior unsecured obligations of the Company and will
rank pari passu in right of payment with all existing and future unsubordinated
indebtedness of the Company.
37
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any one of the
following: its Chairman, Chief Executive Officer, one of its Vice Chairmen, its
President or one of its Vice Presidents and attested by one of its Vice
Presidents or its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall (upon Company Order) authenticate and deliver Securities
for original issue in an aggregate principal amount of up to $500,000,000.
Each Security shall be dated the date of its authentication.
No Security endorsed thereon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of one of its duly
authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of substantially all of its properties and assets to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company shall have been merged, or the successor
Person which shall have received a conveyance, transfer, Lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, Lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the
38
name of the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon written order of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of any Holder but without expense to such Holder, shall provide for the
exchange of all Securities at the time Outstanding held by such Holder for
Securities authenticated and delivered in such new name.
Except as described below, the Securities will be deposited with, or on
behalf of, the Depository, and registered in the name of the Depository or the
nominee of the Depository in the form of one or more global note certificates
(each a "Rule 144A Global Security"), for credit to the respective accounts of
the beneficial owners of the Securities represented thereby. The Rule 144A
Global Securities shall bear the legend set forth in Section 206 and, in the
case of Restricted Securities, the legend set forth in Section 205.
Securities purchased by persons outside the United States pursuant to sales
in accordance with Regulation S under the Securities Act shall be deposited
with, or on behalf of, the Depository, and registered in the name of the
Depository or the nominee of the Depository in the form of one or more global
note certificates (each a "Regulation S Global Security"), for credit to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct), provided that upon such
deposit all such Securities shall be credited to or through accounts maintained
at the Depository by or on behalf of the Euroclear System or Cedel Bank, S.A.
Securities represented by a Regulation S Global Security will not be
exchangeable for Securities in registered definitive form (each a "Physical
Security") until the expiration of the "40-day restricted period" within the
meaning of Rule 903(c)(3) of Regulation S under the Securities Act. The
Regulation S Global Securities shall bear the legend set forth in Section 206
and, in the case of Restricted Securities, the legend set forth in Section 205.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are typewritten, printed, lithographed, engraved or otherwise
produced or produced by any combination of these methods, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate
39
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. Such Security Register shall
distinguish between Initial Securities and Exchange Securities.
Except as otherwise described in this Article Three, upon surrender for
registration of transfer of any Security at the office or agency of the Company
designated pursuant to Section 1002 for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denomination or denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations and of a like
aggregate principal amount upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive; provided
that no exchange of Initial Securities for Exchange Securities shall occur until
an Exchange Offer Registration Statement shall have been declared effective by
the Commission, the Trustee shall have received an Officers' Certificate
confirming that the Exchange Offer
40
Registration Statement has been declared effective by the Commission and the
Initial Securities to be exchanged for the Exchange Securities shall be canceled
by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and (subject to the provisions in the Initial Securities regarding the
payment of additional interest) entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer, or
for exchange, shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Every Restricted Security shall be subject to, and no transfer shall be
made other than in accordance with, the restrictions on transfer provided in the
legend set forth on the form of the face of each Restricted Security and the
restrictions set forth in this Article Three, and the Holder of each Restricted
Security, by such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer.
The Security Registrar shall notify the Company of any proposed transfer of
a Restricted Security to any Person.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp or similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
303, 304 or 906 not involving any transfer.
The Company shall not be required to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before an Interest Payment Date and ending on the close of business on such
Interest Payment Date.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as
41
may be required by them to save each of them and any agent of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, and bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section 306, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section 306 in lieu of
any destroyed, lost or stolen Security shall constitute a contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. The initial
Interest Payment Date for any Security shall be the first January 15 or July 15
occurring after the Securities Issue Date for such Security.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the interest rate borne by the Securities, to the extent
lawful (such defaulted interest and interest thereon herein collectively called
"Defaulted Interest"), shall forthwith cease to be payable to
42
the Holder on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Subsection provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsection, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
43
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the time of due presentment for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Section
307) interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section 309, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by the Company pursuant to a Company Order, provided,
however, that the Trustee shall not be required to destroy such canceled
Securities.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. REGISTRATION RIGHTS OF HOLDERS OF INITIAL SECURITIES.
Pursuant to the terms of the Registration Rights Agreement, holders of
Initial Securities, if any, shall be entitled to the benefits of the
Registration Rights Agreement.
SECTION 312. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices of repurchase
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a repurchase
44
and that reliance may be placed only on the serial or other identification
numbers printed on the Securities, and any such repurchase shall not be affected
by any defect in or omission of such "CUSIP" numbers. The Company will promptly
notify the Trustee of any change in the "CUSIP" numbers.
SECTION 313. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 206 and, in the case of Restricted Securities in the form of Global
Securities, Section 205.
Members of, or participants in, the Depository ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in a Rule 144A Global Security may be transferred
or exchanged for interests in a Regulation S Global Security, and interests of
beneficial owners in a Regulation S Global Security may be transferred or
exchanged for interests in a Rule 144A Global Security, in each case in
accordance with the rules and procedures of the Depository and the provisions of
Section 314. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 314.
In addition, Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in a Global Security if (i)
the Depository notifies the Company that it is unwilling or unable to continue
as a depository for such Global Security or if at any time the Depository ceases
to be a clearing agency registered under the Exchange Act, and a successor
depository is not appointed by the Company within 90 days, (ii) there shall have
occurred and be continuing an Event of Default with respect to the Securities
represented
45
by such Global Security or (iii) the Company at any time determines not to have
Securities represented by a Global Security.
Except as provided above, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Security, whether pursuant to this Section 313, Section 304, 305, 306 or 906 or
otherwise, shall also be a Global Security and bear the legend specified in
Section 206.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical Securities
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and principal amount of authorized
denominations.
(d) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b), the Global Securities shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Securities, an equal aggregate principal amount of Physical
Securities of like tenor of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in a Global
Security pursuant to paragraph (b) or (c) of this Section 313 shall, except as
otherwise provided by clause (1)(x) of paragraph (a) and by paragraph (d) of
Section 314, bear the legend set forth in Section 205.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 314. SPECIAL TRANSFER PROVISIONS.
(a) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to the registration of any proposed transfer of a Restricted
Security to any non- U.S. person:
46
(i) the Security Registrar shall register the transfer of any
Restricted Security if (x) the requested transfer is not prior to the date
which is two years (or such other period as may be prescribed by Rule
144(k) under the Securities Act or any successor provision thereunder)
after the later of the original issue date of such Security (or of any
Predecessor Security) or the last day on which the Company or any Affiliate
of the Company was the owner of such Security or any Predecessor Security
or (y) the proposed transferee has checked the box provided for on the form
of Security stating, and has provided to the Security Registrar such
certifications, opinions and other information as the Security Registrar
may (and, if so directed by the Company, shall) require, stating that such
Security is being transferred pursuant to offers and sales to non-U.S.
persons that occur outside the United States within the meaning of
Regulation S under the Securities Act; and
(ii) the Security Registrar shall register the transfer of any
Restricted Security if the proposed transferor is an Agent Member holding a
beneficial interest in a Rule 144A Global Security, upon receipt by the
Security Registrar of (x) the certificate, if any, required by paragraph
(i) above and (y) instructions given in accordance with the Depository's
and the Security Registrar's procedures;
whereupon the Security Registrar shall reflect on its books and records the date
of such transfer and (A) (if the transfer involves a transfer of a beneficial
interest in a Rule 144A Global Security) a decrease in the principal amount of
such Rule 144A Global Security in an amount equal to the principal amount to be
transferred and (B) an increase in the principal amount of a Regulation S Global
Security in an amount equal to the principal amount to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with respect to
the registration of any proposed transfer of a Restricted Security to a person
purporting to be a QIB (excluding transfers to non-U.S. persons):
(i) the Security Registrar shall register the transfer of any
Restricted Security if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or
who has otherwise advised the Company and the Security Registrar in
writing, that the transfer has been made in compliance with the exemption
from registration under the Securities Act provided under Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that such transferee represents and warrants that it
is purchasing the Security for its own account or an account with respect
to which it exercises sole
47
investment discretion and that each of it and any such account is a QIB
within the meaning of Rule 144A and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) the Security Registrar shall register the transfer of any
Restricted Security if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Rule 144A Global
Security, upon receipt by the Security Registrar of instructions given in
accordance with the Depository's and the Security Registrar's procedures,
the Security Registrar shall reflect on the Security Register the date and
an increase in the principal amount of the Rule 144A Global Security in an
amount equal to the principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Other Transfers. If a Holder proposes to transfer a Security pursuant
to any exemption from the registration requirements of the Securities Act other
than as provided for by Sections 314(a) and 314(b), the Security Registrar shall
only register such transfer or exchange if such transferor delivers to the
Security Registrar and the Trustee an Opinion of Counsel satisfactory to the
Company and the Security Registrar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; provided that the Company may,
based upon the opinion of its counsel, instruct the Security Registrar by a
Company Order not to register such transfer in any case where the proposed
transferee is not a QIB or a non-U.S. person.
(d) Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Restricted Securities, the Security Registrar shall deliver
only Securities that bear the legend set forth in Section 205 unless the
circumstances contemplated by clause (a)(1)(x) of this Section 314 exist. By its
acceptance of any Security bearing the legend set forth in Section 205, each
Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in such legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 313 or this Section
314 for a period of two years, after which time such letters, notices and other
written communications shall at the written
48
request of the Company be delivered to the Company. The Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable prior
written notice to the Security Registrar.
(e) Termination of Restrictions. The restrictions imposed by this Section
314 upon the transferability of any particular Restricted Security shall cease
and terminate (i) on the later of July 13, 2001 and two years after the last
date on which the Company or any Affiliate of the Company was the owner of such
Restricted Security (or any predecessor of such Restricted Security) or (ii) (if
earlier) if and when such Restricted Security has been sold pursuant to an
effective registration statement under the Securities Act. Any Restricted
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such
Restricted Security for exchange to the Trustee or any transfer agent in
accordance with the provisions of Section 305, be exchanged for a new Initial
Security, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by Section 205. The Company shall inform the Trustee
in writing of (i) the effective date of any registration statement registering
the Initial Securities under the Securities Act and (ii) at the request of the
Trustee, the date which is two years after the last date on which the Company or
any Affiliate of the Company was the owner of a Restricted Security in the event
that an Exchange Offer has not been consummated.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
Securities herein expressly provided for) and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than
(A) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (B) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in
49
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable within one year,
and the Company, in the case of (A) or (B) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of Subsection (a)
of this Section 401, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive such satisfaction and discharge.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal and interest for whose payment
such money has been deposited with the Trustee.
50
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on any Security when
the same becomes due and payable and such default continues for a period of 30
days;
(b) the Company defaults in the payment of the principal of any Security
when the same becomes due and payable at maturity, upon acceleration or
otherwise;
(c) the Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities or this Indenture, and the
Default continues for the period and after the notice, if any, specified below;
(d) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or one of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or one of its
Restricted Subsidiaries), whether such Indebtedness or guarantee now exists or
shall be created hereafter (but excluding any Indebtedness for the deferred
purchase price of property or services owed to the Person providing such
property or services as to which the Company or such Restricted Subsidiary is
contesting its obligation to pay the same in good faith and by proper
proceedings and for which the Company or such Restricted Subsidiary has
established appropriate reserves), and (i) either (A) such event of default
results from the failure to pay any such Indebtedness at final maturity or (B)
as a result of such event of default the maturity of such Indebtedness has been
accelerated prior to its expressed maturity and (ii) the principal amount of
such Indebtedness equals $10,000,000 or more or, together with the principal
amount of any such Indebtedness in default for failure to pay principal at
maturity or the maturity of which has been so accelerated, aggregates
$10,000,000 or more;
(e) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any Restricted Subsidiary and either (i) an enforcement proceeding shall have
been commenced by any
51
creditor upon such judgment or (ii) such judgment remains undischarged and
unbonded for a period (during which execution shall not be effectively stayed)
of 60 days, provided that the aggregate of all such judgments exceeds
$10,000,000;
(f) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) admits in writing that it generally is unable to pay its debts
as the same become due; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case or
proceeding,
(ii) appoints a Custodian of the Company or for all or substantially
all of its property, or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
A Default under Section 501(c) is not an Event of Default until the Trustee
notifies the Company in writing, or the Holders of at least 25% in principal
amount of the Securities then Outstanding notify the Company and the Trustee in
writing, of the Default, and
52
the Company does not cure the Default within 60 days (30 days in the case of a
Default under Section 801 or 1004) 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 to the Company shall be given by the Trustee if
so requested in writing by the Holders of 25% of the principal amount of the
Securities then Outstanding.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION.
If an Event of Default (other than an Event of Default specified in Section
501(f) or 501(g)) occurs and is continuing, the Trustee or the Holders of at
least 25% of the principal amount of the Initial Securities and the Exchange
Securities then Outstanding, voting together as a single class, by written
notice to the Company and the agents, if any, under the Bank Credit Agreement
(and to the Trustee if such notice is given by the Holders), may, and the
Trustee at the request of such Holders shall, declare all unpaid principal of
and accrued interest on all the Securities to be due and payable, as specified
below. Upon a declaration of acceleration, such principal and accrued interest
shall be due and payable 10 days after receipt by the Company of such written
notice given hereunder. If an Event of Default specified in Section 501(f) or
501(g) with respect to the Company occurs, the amounts described above shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. Upon payment of such
principal and interest all of the Company's obligations under the Securities and
this Indenture, other than obligations under Section 606, shall terminate.
The Holders of at least a majority in principal amount of the Initial
Securities and the Exchange Securities then Outstanding, voting together as a
single class, by written notice to the Trustee, may rescind an acceleration and
its consequences if (i) all existing Events of Default, other than the
non-payment of principal of or interest on the Securities which have become due
solely because of the acceleration, have been cured or waived and (ii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Securities because an Event of Default specified
in Section 501(d) shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof have
rescinded their declaration of acceleration in respect of such Indebtedness, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company and countersigned by the holders of
such Indebtedness or a trustee, fiduciary or agent for such holders, within 30
days after such
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declaration of acceleration in respect of the Securities, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
Notices by the Trustee to the agents under the Bank Credit Agreement
provided for herein shall be delivered or mailed to Toronto Dominion (Texas),
Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Agency
Department; and to any other person who hereafter becomes an agent under the
Bank Credit Agreement, provided the Trustee has been notified by the Company or
the Banks of the names and mailing addresses of such persons.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest, at the rate borne by the Securities; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by
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such appropriate private or judicial proceedings as the Trustee shall deem most
effectual to protect and enforce such rights.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
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 of the Holders allowed in such judicial proceeding,
and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Initial Securities and the Exchange Securities then Outstanding, voting
together as a single
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class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such
Security on the respective due dates expressed in such Security and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Initial Securities and
the Exchange Securities then Outstanding, voting together as a single class,
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability, and
(b) subject to the provisions of Trust Indenture Act Section 315, the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Initial Securities and
the Exchange Securities then Outstanding, voting together as a single class, may
on behalf of the Holders of all the Securities waive any past Default or Event
of Default hereunder and its consequences, except a Default or Event of Default
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(a) in the payment of the principal of or interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Initial Securities and
the Exchange Securities then Outstanding, voting together as a single class, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the respective Stated
Maturities expressed in such Security; provided that neither this Section 514
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution
59
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, notice of such Default hereunder actually known to a
Responsible Officer of the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders; and provided further that, in the case
of any default or breach of the character specified in Section 501(d), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections 315(a) through
315(d):
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting
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any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements to be made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Trust Indenture Act Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the
62
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability
or expense including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a Lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(f) or 501(g), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for the
services will be intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section 606 shall survive the termination of this
Indenture.
SECTION 607. CONFLICTING INTERESTS.
(a) The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
(b) The indenture dated as of February 15, 1993, for the Company's 97/8%
Senior Subordinated Debentures due 2013, the indenture dated as of April 1,
1993, for the Company's 97/8% Senior Subordinated Debentures due 2023 the
indenture dated as of November 1, 1995, for the Company's 9 1/4% Senior
Subordinated Debentures due 2005, the Company's 97/8% Senior Subordinated
Debentures due 2006 and the Company's 10 1/2% Senior Subordinated Debentures due
2016, the indenture dated as of August 26, 1997 for the Company's 8 1/8% Senior
Debentures due 2009 and the indenture dated as of July 1, 1998 for the Company's
7 1/4 Senior Notes due 2008 and 75/8 Senior Debentures due 2018 shall be
63
deemed to be specifically described herein for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder qualified or to be
qualified under Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least $50,000,000 to the extent there is such
an institution eligible and willing to serve. If the Trustee publishes reports
of condition at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 608, the combined capital and
surplus of the Trustee shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 608, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If at any time:
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(i) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(ii) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(iii) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (A) the Company by a Board Resolution may remove the Trustee,
or (B) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with Section
610, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Securities and so accepted appointment, the Holder
of any Security who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
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SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee, provided, however, that the retiring Trustee
shall continue to be entitled to the benefit of Section 606(c); but, on request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 613. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually received such
application, unless any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312.
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after April 30 of each year commencing with the first April
30 after the Security Issue Date, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such
April 30 if required by Trust Indenture Act Section 313(a).
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SECTION 703. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations; delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates);
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; delivery of such
reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable
from information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates); and
(c) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), such summaries of any information, documents
and reports required to be filed by the
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Company pursuant to subsections (a) and (b) of this Section 703 as may
be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate or merge with or into, or sell, assign,
transfer, lease, convey, or otherwise dispose of all or substantially all of its
assets to, any Person, unless:
(a) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or disposition shall have been made, is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia and shall assume by supplemental
indenture hereto all the obligations of the Company under the Securities
and this Indenture;
(b) immediately before and immediately after such transaction, and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing;
(c) immediately after such transaction, and after giving effect
thereto, the Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, lease or conveyance or
disposition shall have been made (the "successor"), shall have a Cash Flow
Ratio not in excess of 9 to 1; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture, if one is required by this
Section 801, comply with this Section 801 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Cash Flow Ratio for purposes of this Section 801 shall be computed as if
any such successor were the Company.
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SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer, Lease
or conveyance or other disposition of all or substantially all of the assets, of
the Company in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, Lease, conveyance or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor assumes all the
obligations of its predecessor under this Indenture and the Securities, the
predecessor will be released from those obligations, provided that in the case
of a transfer by lease, the predecessor corporation shall not be released from
the payment of principal and interest on the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities;
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein or in the Securities
conferred upon the Company;
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that, in each case, such
provisions shall not adversely affect the interests of the Holders in any
material respect;
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(d) to secure the Securities, if the Company so elects;
(e) to supplement any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of
the Securities pursuant to Sections 1201, 1202 and 1203.
(f) to make any changes necessary to qualify this Indenture under the
Trust Indenture Act in connection with the Exchange Offer or the Shelf
Registration Statement; or
(g) to make any other change that does not adversely affect the rights
of any Holder.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Initial Securities and the Exchange Securities then
Outstanding, voting together as a single class, by Act of such Holders delivered
to the Company and the Trustee and the Company, each when authorized by a Board
Resolution, and the Trustee may enter into one or more indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of waiving or modifying
in any manner the rights of the Holders under this Indenture; provided, however,
that no such supplemental indenture, amendment or waiver shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon, or change the coin or currency in which the
principal of any Security or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment after the
Stated Maturity thereof; or
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture;
or
(c) modify any of the provisions of this Section 902 or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this
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Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section 902
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Trust Indenture Act Section 315(a) through 315(d) and Section
602 hereof) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. If the Corporate Trust Office is located in New York
City, then it shall be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or
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interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of or interest
on any Securities, deposit with a Paying Agent a sum in same day funds (or New
York Clearing House funds if such deposit is made prior to the date on which
such deposit is required to be made) sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 1003, that such
Paying Agent will:
(a) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal or
interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
74
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), corporate licenses and corporate franchises of the
Company and its Restricted Subsidiaries, except where a failure to do so, singly
or in the aggregate, is not likely to have a materially adverse effect upon the
business, assets, financial condition or results of operations of the Company
and the Restricted Subsidiaries taken as a whole determined on a consolidated
basis in accordance with generally accepted accounting principles; provided that
the Company shall not be required to preserve any such existence (except of the
Company), right, license or franchise if the Board of Directors, or of the
Restricted Subsidiary concerned, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company or such
Restricted Subsidiary and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a lien upon the property of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by or leased to it or
any Restricted Subsidiary and necessary in the conduct of its business or the
business of such Restricted Subsidiary to be maintained and kept in normal
condition, repair and working order, ordinary wear and tear excepted; provided
that nothing in this Section 1006 shall prevent the Company or any Restricted
Subsidiary from discontinuing the use, operation or maintenance of
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any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the Restricted
Subsidiary concerned, or of any officer (or other agent employed by the Company
or any Restricted Subsidiary) of the Company or such Restricted Subsidiary
having managerial responsibility for any such property, desirable in the conduct
of the business of the Company or any Restricted Subsidiary of the Company and
if such discontinuance or disposal is not adverse in any material respect to the
Holders.
The Company shall provide or cause to be provided, for itself and any
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties in the same general areas in which
the Company or such Restricted Subsidiaries operate.
SECTION 1007. LIMITATION ON INDEBTEDNESS.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, incur, create, issue, assume, guarantee or otherwise
become liable for, contingently or otherwise, or become responsible for the
payment of, contingently or otherwise, any Indebtedness (other than Indebtedness
between or among any of the Company and Restricted Subsidiaries) unless, after
giving effect thereto, the Cash Flow Ratio shall be less than or equal to 9 to
1.
SECTION 1008. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind, except for Permitted Liens, on or with respect to any of its property or
assets, whether owned at the date of this Indenture or hereafter acquired, or
any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Indebtedness that is subordinated in right of payment to the Securities, the
Securities are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien and (y) in the case of any other Lien, the
Securities are equally and ratably secured.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
Except as otherwise provided in this Section 1009, the Company shall not,
and shall not permit any Restricted Subsidiary to, make any Restricted Payment
if (a) at the time of such proposed Restricted Payment, a Default or Event of
Default shall have occurred and be
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continuing or shall occur as a consequence of such Restricted Payment or (b)
immediately after giving effect to such Restricted Payment, the aggregate of all
Restricted Payments that shall have been made on or after July 1, 1988 would
exceed the sum of:
(a) $25,000,000, plus
(b) an amount equal to the difference between (i) the Cumulative Cash
Flow Credit and (ii) 1.2 multiplied by Cumulative Interest Expense.
For purposes of this Section 1009, the amount of any Restricted Payment, if
other than cash, shall be based upon fair market value as determined by the
Board of Directors, whose good faith determination shall be conclusive.
The foregoing provisions of this Section 1009 shall not prevent (i) the
payment of any dividend within 60 days after the date of declaration thereof, if
at such date of declaration such payment complied with the provisions or this
Section 1009; and (ii) the retirement, redemption, purchase, defeasance or other
acquisition of any shares of the Company's Capital Stock or warrants, rights or
options to acquire Capital Stock of the Company in exchange for, or out of the
proceeds of a sale (within one year before or 180 days after such retirement,
redemption, purchase, defeasance or other acquisition) of, other shares of the
Company's Capital Stock or warrants, rights or options to acquire Capital Stock
of the Company. For purposes of determining the aggregate permissible amount of
Restricted Payments in accordance with clause (b) of the first paragraph of this
Section 1009, all amounts expended pursuant to clause (i) of this paragraph
shall be included and all amounts expended or received pursuant to clause (ii)
of this paragraph shall be excluded; provided, however, that amounts paid
pursuant to clause (i) of this paragraph shall be included only to the extent
that such amounts were not previously included in calculating Restricted
Payments.
For the purposes of this Section 1009, the net proceeds from the issuance
of shares of Capital Stock of the Company upon conversion of Indebtedness shall
be deemed to be an amount equal to (i) the accreted value of such Indebtedness
on the date of such conversion and (ii) the additional consideration, if any,
received by the Company upon such conversion thereof, less any cash payment on
account of fractional shares (such consideration, if in property other than
cash, to be determined by the Board of Directors, whose good faith determination
shall be conclusive and evidenced by a Board Resolution). If the Company makes a
Restricted Payment which, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Section 1009, such Restricted Payment shall be deemed to
have been made in compliance with this Section 1009 notwithstanding any
subsequent adjustments made in good faith to the
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Company's financial statements affecting Cumulative Cash Flow Credit or
Cumulative Interest Expense for any period.
SECTION 1010. LIMITATION ON INVESTMENTS IN UNRESTRICTED SUBSIDIARIES AND
AFFILIATES.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, (a) make any Investment or (b) allow any Restricted
Subsidiary to become an Unrestricted Subsidiary (a "redesignation of a
Restricted Subsidiary"), in each case unless (i) no Default or Event of Default
shall have occurred and be continuing or shall occur as a consequence of such
Investment or such redesignation of a Restricted Subsidiary and (ii) after
giving effect thereto, the Cash Flow Ratio shall be less than or equal to 9 to
1.
The foregoing provisions of this Section 1010 shall not prohibit (a) any
renewal or reclassification of any Investment existing on the date hereof or (b)
trade credit extended on usual and customary terms in the ordinary course of
business.
SECTION 1011. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets to
or purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, an
Affiliate of the Company that is not a Subsidiary, having a value, or for
consideration having a value, in excess of $10,000,000 individually or in the
aggregate unless the Board of Directors shall make a good faith determination
that the terms of such transaction are, taken as a whole, no less favorable to
the Company or such subsidiary, as the case may be, than those which might be
available in a comparable transaction with an unrelated Person. For purposes of
clarification, this Section 1011 shall not apply to any Restricted Payments
permitted by Section 1009.
SECTION 1012. PROVISION OF FINANCIAL STATEMENTS.
(a) The Company shall supply without cost to each Holder of the Securities,
and file with the Trustee (if not otherwise filed with the Trustee pursuant to
Section 703) within 30 days after the Company is required to file the same with
the Commission, copies of the annual reports and quarterly reports and of the
information, documents and other reports which the Company may be required to
file with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange.
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(b) If the Company is not required to file with the Commission such reports
and other information referred to in Section 1012(a), the Company shall furnish
without cost to each Holder of the Securities and file with the Trustee (i)
within 140 days after the end of each fiscal year, annual reports containing the
information required to be contained in Items 1, 2, 3, 6, 7, 8 and 9 of Form
10-K promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, and (ii)
within 75 days after the end of each of the first three fiscal quarters of each
fiscal year, quarterly reports containing the information required to be
contained in Form 10-Q promulgated under the Exchange Act, or substantially the
same information required to be contained in any successor form.
(c) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Restricted Security, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser of such Security
designated by such holder, as the case may be, in order to permit compliance by
such holder with Rule 144A under the Securities Act.
SECTION 1013. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year ending after July 13, 1999, a brief certificate of its
principal executive officer, principal financial officer or principal accounting
officer stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions under this Indenture. For purposes
of this Section 1013, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1014. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1007 through 1012 if, before or after the
time for such compliance, the Holders of a majority in aggregate principal
amount of the Outstanding Securities, by Act of such Holders, waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
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SECTION 1015. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. NO RIGHT OF REDEMPTION.
The Securities are not subject to redemption at the option of the Company.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 1205 and the other Sections of this Indenture referred to in (A) and (B)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments
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acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (D) this Article Twelve. Subject to compliance with this Article Twelve, the
Company may exercise its option under this Section 1202 notwithstanding the
prior exercise of its option under Section 1203 with respect to the Securities.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1203, the Company shall be released from its obligations under any
covenant contained in Article Eight and in Sections 1004 through 1012 with
respect to the Outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities shall thereafter be deemed to be not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 501(c), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. In addition, upon the
Company's exercise under Section 1201 of the option applicable to Section 1203,
Sections 501(c) through 501(e) shall not constitute Events of Default.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1202
or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who
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shall agree to comply with the provisions of this Article Twelve applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, (A) cash in U.S. Dollars in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, cash in U.S. Dollars in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and interest on the Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities. For this
purpose, "U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Default or Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
Subsection 501(f) or 501(g) is concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
82
(3) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by
which it is bound.
(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
stating that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (y) since August 26, 1997,
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of the Outstanding Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(5) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States to
the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(6) In the case of an election under either Section 1202 or 1203, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1202 or 1203 was not made by the
Company with the intent of preferring the Holders over other creditors of
the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 1202 or the covenant defeasance under Section 1203
(as the case may be) have been complied with.
Section 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
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payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal and interest, but such money need not be segregated from other funds
except to the extent required by law. Money and U.S. Government Obligations so
held in trust are not subject to Article Twelve.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
1204(1)), are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in accordance
with Section 1202 or 1203, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1202 or 1203, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1202 or 1203, as the case may be; provided, however,
that, if the Company makes any payment of principal of or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
* * * * *
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This Indenture may be signed in any number of counterparts with the same
effect as if the signatures to each counterpart were upon a single instrument,
and all such counterparts together shall be deemed an original of this
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CSC HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Xxxxxxx X. Xxxx
Vice Chairman
Attest:
/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Executive Vice President
General Counsel and Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------
Assistant Treasurer
A-1
EXHIBIT A
RESTRICTED SUBSIDIARIES(1)
(* - material subsidiary)
3300 Lakeside Corporation
A-R Cable Investments, Inc.
A-R Cable Services - NY, Inc.
Arsenal MSub 2 Inc.
Arsenal MSub 7, Inc.
Cable Science Corporation
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Lightpath, Inc.
Cablevision MFR, Inc.
Cablevision of Boston, Inc.
Cablevision of Brookhaven, Inc.
Cablevision of Brookline Limited Partnership
Cablevision of Brookline, Inc.
Cablevision of Cleveland G.P., Inc.
Cablevision of Cleveland L.P., Inc.
Cablevision of Cleveland, L.P.
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Xxxxxx County, Inc.
Cablevision of Massachusetts, Inc. (f/k/a Cablevision of Nashoba, Inc.)
Cablevision of Michigan, Inc.
Cablevision of Monmouth, Inc.
Cablevision of New Jersey, Inc.
*Cablevision of New York City - Master L.P.
Cablevision of New York City - Phase I L.P.
Cablevision of Newark
Cablevision of Oakland, Inc.
Cablevision of Paterson, Inc.
Cablevision of Rockland/Ramapo, Inc.
Cablevision of Southern Westchester, Inc.
Cablevision of the Midwest Holding, Inc.
Cablevision of the Midwest, Inc.
Cablevision of Warwick, Inc.
Cablevision Systems Brookline Corporation
Cablevision Systems Dutchess Corporation
A-2
Cablevision Systems East Hampton Corporation
Cablevision Systems Great Neck Corporation
Cablevision Systems Huntington Corporation
Cablevision Systems Islip Corporation
Cablevision Systems Long Island Corporation
Cablevision Systems New York City Corporation
Cablevision Systems of Southern Connecticut Limited Partnership
Cablevision Systems Suffolk Corporation
Cablevision Systems Westchester Corporation
Communications Development Corporation
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
CSC Gateway Corporation
CSC TKR, Inc.
CSC TKR I, Inc.
KRC/CCC Investment Partnership
NYC GP Corp.
NYC LP Corp.
Petra Cablevision Corporation
Xxxxxxx Cablevision Corp.
Suffolk Cable Corporation
Suffolk Cable of Shelter Island, Inc.
Suffolk Cable of Smithtown, Inc.
Telerama, Inc.
V Cable, Inc.
VC Holding, Inc.
EXHIBIT B
Form of Registration Rights Agreement