EXHIBIT 4.05
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SUBORDINATED GUARANTEE AGREEMENT
between
ADELPHIA COMMUNICATIONS CORPORATION,
as Guarantor,
and
_______________________________,
as Guarantee Trustee
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________________________
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Dated as of _________ ___, 200_
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Certain Sections of this Subordinated Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Section of Section of Subordinated
Trust Indenture Act Guarantee Agreement
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310(a)......................................................................................... 4.1(a)
(b)......................................................................................... 4.1(c), 2.8
(c)......................................................................................... Inapplicable
311(a)......................................................................................... 2.2(b)
(b)......................................................................................... 2.2(b)
(c)......................................................................................... Inapplicable
312(a)......................................................................................... 2.2(a)
(b)......................................................................................... 2.2(b)
313............................................................................................ 2.3
314(a)......................................................................................... 2.4
(b)......................................................................................... Inapplicable
(c)......................................................................................... 2.5
(d)......................................................................................... Inapplicable
(e)......................................................................................... 1.1, 2.5, 3.2
(f)......................................................................................... 2.1, 3.2
315(a)......................................................................................... 3.1(d)
(b)......................................................................................... 2.7
(c)......................................................................................... 3.1(c)
(d)......................................................................................... 3.1(d)
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316(a)................................................................................................ 1.1, 2.6, 5.4
(b)................................................................................................ 5.3, 5.7
(c)................................................................................................ 8.2
317(a)................................................................................................ Inapplicable
(b)................................................................................................ Inapplicable
318(a)................................................................................................ 2.1(b)
(b)................................................................................................ 2.1
(c)................................................................................................ 2.1(a)
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Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Subordinated Guarantee Agreement and shall not affect the
interpretation of any of its terms or provisions.
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TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS............................................... 1
Section 1.1 Interpretation..................................................... 1
Section 1.2 Definitions........................................................ 2
ARTICLE II TRUST INDENTURE ACT......................................................... 6
Section 2.1 Trust Indenture Act; Application................................... 6
Section 2.2 List of Holders.................................................... 6
Section 2.3 Reports by the Guarantee Trustee................................... 6
Section 2.4 Periodic Reports to the Guarantee Trustee.......................... 6
Section 2.5 Evidence of Compliance with Conditions Precedent................... 7
Section 2.6 Events of Default; Waiver.......................................... 7
Section 2.7 Event of Default; Notice........................................... 7
Section 2.8 Conflicting Interests.............................................. 7
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE......................... 8
Section 3.1 Powers and Duties of the Guarantee Trustee......................... 8
Section 3.2 Certain Rights of Guarantee Trustee................................ 9
Section 3.3 Compensation; Indemnity; Fees...................................... 10
ARTICLE IV GUARANTEE TRUSTEE........................................................... 11
Section 4.1 Guarantee Trustee; Eligibility..................................... 11
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee...... 12
ARTICLE V GUARANTEE.................................................................... 12
Section 5.1 Guarantee.......................................................... 12
Section 5.2 Waiver of Notice and Demand........................................ 12
Section 5.3 Obligations Not Affected........................................... 13
Section 5.4 Rights of Holders.................................................. 13
Section 5.5 Guarantee of Payment............................................... 14
Section 5.6 Subrogation........................................................ 14
Section 5.7 Independent Obligations............................................ 14
ARTICLE VI RANKING..................................................................... 14
Section 6.1 Ranking............................................................ 14
Section 6.2 Pari Passu Guarantees.............................................. 14
ARTICLE VII TERMINATION................................................................ 15
Section 7.1 Termination........................................................ 15
ARTICLE VIII MISCELLANEOUS............................................................. 15
Section 8.1 Successors and Assigns............................................. 15
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Section 8.2 Amendments.................................................... 15
Section 8.3 Notices....................................................... 15
Section 8.4 Benefit....................................................... 16
Section 8.5 Governing Law................................................. 16
Section 8.6 Counterparts.................................................. 17
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SUBORDINATED GUARANTEE AGREEMENT, dated as of ________ ___, 200_ (this
"Agreement"), is executed and delivered by ADELPHIA COMMUNICATIONS CORPORATION,
a Delaware corporation (the "Guarantor"), and ________________________, a
___________ organized under the laws of the State of __________, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Debt Securities (as defined herein) of ________________, a
__________ organized under the laws of the State of __________ and a subsidiary
of the Guarantor (the "Issuer").
W I T N E S S E T H :
WHEREAS, pursuant to an Indenture, dated as of _________ ___, ________ (the
"Indenture"), between the Issuer and ____________, as Trustee, the Issuer is
issuing $___________ aggregate principal amount of its ____% _______________
(the "Debt Securities"), having the terms set forth in the Indenture;
WHEREAS, as an incentive for the Holders to purchase the Debt Securities,
the Guarantor irrevocably and unconditionally agrees, to the extent set forth
herein, to pay to the Holders of the Debt Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Debt
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Agreement to provide as
follows for the benefit of the Holders from time to time of the Debt Securities:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation.
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In this Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Agreement but not defined in the
preamble hereto have the respective meanings assigned to them in Section 1.2;
(b) a term defined anywhere in this Agreement has the same meaning
throughout;
(c) all references to "the Agreement" or "this Agreement" are to this
Agreement as originally executed with respect to any specific issue of debt
securities of the Issuer and as modified, supplemented or amended from time to
time;
(d) all references in this Agreement to Articles and Sections are to
Articles and Sections of this Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Agreement unless otherwise defined in this Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and vice-versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 1.2 Definitions.
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As used in this Agreement, the terms set forth below shall, unless the
context otherwise requires, have the following meanings:
"Affiliate" means another Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such first Person.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"Board of Directors" means the board of directors of the Guarantor;
provided, however, that when the context refers to actions or resolutions of the
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Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Guarantor or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Guarantor.
"Capital Stock" means: (1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Agreement; provided, however, that, except with
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respect to a default in payment of any Guarantee Payments, the Guarantor shall
have received notice of default and shall not have cured such default within 30
days after receipt of such notice.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Guarantee Payments" means the following payments, without duplication,
with respect to the Debt Securities, to the extent not paid or made by or on
behalf of the Issuer: (i) the
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principal of the Debt Securities and (ii) any accrued and unpaid premiums,
interest and sinking fund payments, if any, in each case when and as the same
shall become due and payable, whether at maturity, by acceleration or redemption
or otherwise.
"Guarantee Trustee" means _______________, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Agreement, and thereafter means each such Successor Guarantee
Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Debt Securities; provided, however, that in determining whether
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the holders of the requisite percentage of Debt Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness, secured or unsecured, contingent or otherwise, which is for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments or representing the balance deferred
and unpaid of the purchase price of any property (excluding, without limitation,
any balances that constitute subscriber advance payments and deposits, accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included, (i) any
Capitalized Lease Obligations, (ii) obligations secured by a lien to which the
property or assets owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed, (iii)
guaranties of items of other Persons which would be included within this
definition for such other Persons (whether or not such items would appear upon
the balance sheet of the guarantor), (iv) in the case of the Guarantor,
Preferred Stock of its Restricted Subsidiaries and (v) obligations of any such
Person under any Interest Rate Agreement applicable to any of the foregoing.
Notwithstanding the foregoing, Indebtedness shall not include any interest or
accrued interest until due and payable.
"Indenture" has the meaning set forth in the Recitals.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Principal Amount of the Debt Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the principal amount of all then outstanding
Debt Securities issued by the Issuer.
"Officer" means the Chairman of the Board, the Vice Chairman of the Board,
the President, any Senior or Executive Vice President, any Vice President, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Guarantor.
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"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
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 officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (a) any Subsidiary of the Guarantor, whether
existing on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary or shall have been classified as an Unrestricted
Subsidiary by a resolution adopted by the Board of Directors of the Guarantor
and (b) an Unrestricted Subsidiary which is reclassified as a Restricted
Subsidiary by a resolution adopted by the Board of Directors, provided that on
and after the date of such reclassification such Unrestricted Subsidiary shall
not incur Indebtedness other than that permitted to be incurred by a Restricted
Subsidiary under the provisions of this Indenture.
"Senior Debt" means the principal of, premium, if any, interest, including
all interest accruing subsequent to the commencement of any bankruptcy or
similar proceeding, whether or not a claim for post-petition interest is
allowable as a claim in any such proceeding, and rent
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payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of the Guarantor,
whether outstanding on the date of this Agreement or hereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Guarantor.
Notwithstanding anything to the contrary in the foregoing, Senior Debt
shall not include:
1) Indebtedness of or amounts owed by the Guarantor for compensation to
employees, or for goods or materials purchased or for services obtained in
the ordinary course of business;
2) the Guarantor's Indebtedness to any of the Guarantor's subsidiaries; or
3) the Guarantor's Indebtedness that expressly provides that it shall not be
senior in right of payment to this Agreement or expressly provides that it
is on the same basis or junior to this Agreement.
"Subsidiary" of any specified Person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise if in accordance with GAAP
such entity is consolidated with the first-named Person for financial statement
purposes.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary, (b) any Subsidiary of the Guarantor which is classified after the
date of this Agreement as an Unrestricted Subsidiary by a resolution adopted by
the Board of Directors and (c) any subsidiary which as of the date of this
Agreement has been declared an Unrestricted Subsidiary by a resolution adopted
by the Board of Directors (such Unrestricted Subsidiaries including, without
limitation, Adelphia Business Solutions, Inc., Global Cablevision, Inc., Orchard
Park Cablevision, Inc., Global Acquisition Partners, L.P. and FrontierVision
Partners, L.P. on the date hereof).
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ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
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(a) This Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act through the operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Agreement as so modified or to be excluded, as the case may be.
Section 2.2 List of Holders.
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(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (i) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (the "List of Holders") as of a date not more than
15 days prior to the delivery thereof, and (ii) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the extent
such information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
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Not later than ________ __ of each year, commencing _______, 200__, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
The Guarantor will notify the Guarantee Trustee if and when any Debt Securities
are listed on any stock exchange.
Section 2.4 Periodic Reports to the Guarantee Trustee.
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The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of
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the Trust Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
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The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer of the Guarantor pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
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The Holders of a Majority in Principal Amount of the Debt Securities may,
by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
therefrom.
Section 2.7 Event of Default; Notice.
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(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
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except in the case of a default in the payment of a Guarantee Payment, the
Guarantee 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 Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Agreement shall have obtained written notice, of such Event of Default.
Section 2.8 Conflicting Interests.
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The Indenture shall be deemed to be specifically described in this
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
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(a) This Agreement shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Agreement to
any Person except a Holder exercising his or her rights pursuant to Section
5.4(iv) or to a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically vest in
any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Agreement, and no implied covenants shall be read into this Agreement against
the Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Agreement, and the
Guarantee Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement; and
B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Agreement; but in the case of any
such certificates or opinions that by any provision hereof or of the Trust
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Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee Trustee,
unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in Principal Amount of the
Debt Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this Agreement; and
(iv) no provision of this Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
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(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may 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
reasonably believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Agreement, the Guarantee
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee Trustee, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal counsel may be legal counsel
to the Guarantor or any of its Affiliates and may be one of its employees. The
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Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the request or
direction of any Holder, unless such Holder shall have provided to the Guarantee
Trustee such adequate security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be incurred
by it in complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that, nothing
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contained in this Section 3.2(a)(v) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Agreement.
(vi) The Guarantee 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 Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
(viii) Whenever in the administration of this Agreement the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the Holders, (B) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (C) shall be protected in acting in accordance
with such instructions.
(b) No provision of this Agreement shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
Section 3.3 Compensation; Indemnity; Fees.
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The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provisions of law in regard to the compensation of a
trustee of an express trust);
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(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Guarantee Trustee and its directors, officers,
agents and employees for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Agreement, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payments as a result of any amount due to it
under this Agreement.
The provisions of this Section 3.3. shall survive the termination of this
Agreement or the earlier resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section 4.1
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
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Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
-------------------------------------------------------------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.1 Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Agreement and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, the
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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Section 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Debt Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of any sums payable under the terms of the Debt Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Debt Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Debt Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Debt Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. There shall be no obligation of the Holders to give
notice to, or obtain the consent of, the Guarantor with respect to the happening
of any of the foregoing.
Section 5.4 Rights of Holders.
-----------------
The Guarantor expressly acknowledges that: (i) this Agreement will be
deposited with the Guarantee Trustee to be held for the benefit of the Holders;
(ii) the Guarantee Trustee has the right to enforce this Agreement on behalf of
the Holders; (iii) the Holders of a Majority in Principal Amount of the Debt
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Agreement,
without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer or any other Person.
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Section 5.5 Guarantee of Payment.
--------------------
This Agreement creates a guarantee of payment and not of collection. This
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer).
Section 5.6 Subrogation.
-----------
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Agreement and shall have the right to waive payment by the
Issuer pursuant to Section 5.1; provided, however, that the Guarantor shall not
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(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Agreement. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Debt Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 5.3 hereof.
ARTICLE VI
RANKING
Section 6.1 Ranking.
-------
The obligations of the Guarantor under this Agreement will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Debt of the Guarantor. The obligations of the
Guarantor under this Agreement do not constitute Senior Debt.
Section 6.2 Pari Passu Guarantees.
---------------------
The obligations of the Guarantor under this Agreement shall rank pari passu
with the obligations of the Guarantor under any similar subordinated guarantee
agreements issued by the Guarantor on behalf of the holders of debt securities
issued by any subsidiary of the Guarantor.
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ARTICLE VII
TERMINATION
Section 7.1 Termination.
-----------
This Agreement shall terminate and be of no further force and effect upon
the full payment of the aggregate principal of, and any accrued and unpaid
premiums, interest and sinking fund payments, if any, on, the Debt Securities.
Notwithstanding the foregoing, this Agreement will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid with respect to Debt Securities or this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns.
----------------------
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Debt Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor and pursuant to which the successor or assignee agrees in writing
to perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
Section 8.2 Amendments.
----------
Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no consent of the Holders
will be required), this Agreement may only be amended with the prior approval of
the Holders of not less than a Majority in Principal Amount of the Debt
Securities. The provisions of the Indenture concerning meetings of the Holders
shall apply to the giving of such approval.
Section 8.3 Notices.
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Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
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Adelphia Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
______________
c/o Adelphia Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
________________
________________
________________
Facsimile No.: ________________
Attention: ___________________
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4 Benefit.
-------
This Agreement is solely for the benefit of the Holders and is not
separately transferable from the Debt Securities.
Section 8.5 Governing Law.
-------------
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
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Section 8.6 Counterparts.
------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
ADELPHIA COMMUNICATIONS
CORPORATION
By: _____________________
Name: _______________
Title: ______________
________________________,
as Guarantee Trustee
By: _____________________
Name: _______________
Title: ______________
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