EXHIBIT 4.4
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CABLEVISION SYSTEMS CORPORATION,
Issuer,
TO
THE BANK OF NEW YORK,
Trustee
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INDENTURE
Dated as of September 26, 1995
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11 3/4% Senior Subordinated Debentures Due 2007
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions ......................................... 1
Affiliate ................................................. 2
Annualized Operating Cash Flow ............................ 2
Bank Credit Agreement ..................................... 2
Banks...................................................... 2
Board of Directors......................................... 2
Board Resolution........................................... 2
Book-Entry Security........................................ 3
Business Day............................................... 3
Capital Stock.............................................. 3
Capitalized Lease Obligation............................... 3
Cash Flow Ratio............................................ 3
Class A Common Stock....................................... 3
Commission................................................. 3
Common Stock............................................... 3
Company.................................................... 4
Company Request" or "Company Order......................... 4
Corporate Trust Office..................................... 4
corporation................................................ 4
Cumulative Cash Flow Credit................................ 4
Cumulative Interest Expense................................ 5
Debt....................................................... 5
Default.................................................... 5
Depository................................................. 5
Disqualified Stock......................................... 5
Event of Default........................................... 6
Exchange Act............................................... 6
Exchange Debenture Issue Date.............................. 6
Generally Accepted Accounting Principles" or "GAAP......... 6
Global Security............................................ 6
guarantee.................................................. 6
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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PAGE
Holder .................................................... 6
Indebtedness............................................... 6
Indenture.................................................. 7
Initial Purchasers......................................... 7
Initial Securities......................................... 7
Interest Payment Date...................................... 7
Interest Swap Obligations.................................. 7
Investment................................................. 7
Junior Securities.......................................... 8
Lien....................................................... 8
Maturity................................................... 8
Officers' Certificate...................................... 8
Operating Cash Flow........................................ 8
Opinion of Counsel......................................... 9
Outstanding................................................ 9
Paying Agent............................................... 10
Permitted Restricted Payment............................... 10
Person..................................................... 10
Predecessor Security....................................... 10
Preferred Stock............................................ 10
Qualified Institutional Buyer" or "QIB..................... 11
Redemption Date............................................ 11
Redemption Price........................................... 11
Registered Securities...................................... 11
Registration Rights Agreement.............................. 11
Regular Record Date........................................ 11
Representative............................................. 11
Responsible Officer........................................ 11
Restricted Payment......................................... 11
Restricted Security........................................ 12
Restricted Subsidiary...................................... 12
RPH........................................................ 12
Securities Act............................................. 12
Security" and "Securities.................................. 13
Senior Indebtedness........................................ 13
Special Record Date........................................ 13
Stated Maturity............................................ 13
Stock Payment.............................................. 13
Strategic Equity Investor.................................. 14
subsidiary................................................. 14
Subsidiary................................................. 14
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PAGE
Trust Indenture Act........................................ 14
Trustee.................................................... 14
Unrestricted Subsidiary.................................... 14
Voting Stock............................................... 14
Section 102. Other Definitions.................................... 14
Section 103. Compliance Certificates and Opinions................. 15
Section 104. Form of Documents Delivered to Trustee............... 16
Section 105. Acts of Holders...................................... 16
Section 106. Notices, Etc. to Trustee and Company................. 17
Section 107. Notice to Holders; Waiver............................ 18
Section 108. Conflict of any Provision of Indenture with
Trust Indenture Act................................ 18
Section 109. Effect of Headings and Table of Contents............. 19
Section 110. Successors and Assigns............................... 19
Section 111. Separability Clause.................................. 19
Section 112. Benefits of Indenture................................ 19
Section 113. Governing Law........................................ 19
Section 114. Legal Holidays....................................... 19
Section 115. No Recourse Against Others........................... 20
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally; Incorporation of Form in
Indenture.......................................... 20
Section 202. Form of Face of Registered Security.................. 21
Section 203. Form of Reverse of Registered Security............... 22
Section 204. Form of Trustee's Certificate of
Authentication..................................... 25
Section 205. Form of Legend on Restricted Securities.............. 26
Section 206. Form of Legend for Book-Entry Securities............. 26
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms...................................... 27
Section 302. Denominations........................................ 28
Section 303. Execution, Authentication, Delivery and Dating....... 28
Section 304. Temporary Securities................................. 29
Section 305. Registration, Registration of Transfer and Exchange.. 30
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..... 34
Section 307. Payment of Interest; Interest Rights Preserved....... 35
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PAGE
Section 308. Persons Deemed Owners................................ 36
Section 309. Cancellation......................................... 36
Section 310. Computation of Interest.............................. 37
Section 311. Registration Rights of Holders of Initial Securities. 37
Section 312. ..................................................... 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture ............. 37
Section 402. Application of Trust Money .......................... 39
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.................................... 39
Section 502. Acceleration of Maturity; Rescission................. 41
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................... 42
Section 504. Trustee May File Proofs of Claim..................... 43
Section 505. Trustee May Enforce Claims Without Possession of
Securities......................................... 44
Section 506. Application of Money Collected....................... 44
Section 507. Limitation on Suits.................................. 45
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest .............................. 45
Section 509. Restoration of Rights and Remedies................... 46
Section 510. Rights and Remedies Cumulative....................... 46
Section 511. Delay or Omission Not Waiver......................... 46
Section 512. Control by Holders................................... 46
Section 513. Waiver of Past Defaults.............................. 47
Section 514. Undertaking for Costs................................ 47
Section 515. Waiver of Stay, Extension or Usury Laws.............. 47
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults................................... 48
Section 602. Certain Rights of Trustee............................ 48
Section 603. Not Responsible for Recitals or Issuance of
Securities......................................... 49
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Section 604. May Hold Securities.................................. 50
Section 605. Money Held in Trust.................................. 50
Section 606. Compensation and Reimbursement....................... 50
Section 607. Conflicting Interests................................ 51
Section 608. Corporate Trustee Required; Eligibility.............. 51
Section 609. Resignation and Removal; Appointment of Successor.... 52
Section 610. Acceptance of Appointment by Successor............... 53
Section 611. Merger, Conversion, Consolidation or Succession to
Business........................................... 53
Section 612. Preferential Collection of Claims Against Company.... 54
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders......... 54
Section 702. Reports by Trustee................................... 54
Section 703. Reports by Company................................... 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms. 55
Section 802. Successor Substituted................................ 56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders... 57
Section 902. Supplemental Indentures with Consent of Holders...... 58
Section 903. Execution of Supplemental Indentures................. 58
Section 904. Effect of Supplemental Indentures.................... 59
Section 905. Conformity with Trust Indenture Act.................. 59
Section 906. Reference in Securities to Supplemental Indentures... 59
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.......... 59
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Section 1002. Maintenance of Office or Agency..................... 59
Section 1003. Money for Security Payments to Be Held in Trust..... 60
Section 1004. Corporate Existence................................. 61
Section 1005. Payment of Taxes and Other Claims................... 62
Section 1006. Maintenance of Properties........................... 62
Section 1007. Limitation on Indebtedness.......................... 63
Section 1008. Limitation on Senior Subordinated Indebtedness...... 63
Section 1009. Limitation on Restricted Payments................... 63
Section 1010. Limitation on Investments in Unrestricted
Subsidiaries and Affiliates........................ 65
Section 1011. Transactions with Affiliates........................ 65
Section 1012. Provision of Financial Statements................... 65
Section 1013. Statement as to Compliance.......................... 66
Section 1014. Waiver of Certain Covenants......................... 66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption................................. 67
Section 1102. Applicability of Article............................ 67
Section 1103. Election to Redeem; Notice to Trustee............... 67
Section 1104. Selection by Trustee of Securities to Be Redeemed... 67
Section 1105. Notice of Redemption................................ 68
Section 1106. Deposit of Redemption Price......................... 68
Section 1107. Securities Payable on Redemption Date............... 69
Section 1108. Securities Redeemed in Part......................... 69
ARTICLE TWELVE
SUBORDINATION
Section 1201. Securities Subordinated to Senior Indebtedness...... 69
Section 1202. No Payment on Securities in Certain Circumstances... 70
Section 1203. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Winding-Up,
Liquidation or Reorganization of the Company...... 72
Section 1204. Securityholders to Be Subrogated to Rights of
Holders of Senior Indebtedness.................... 73
Section 1205. Obligations of the Company Unconditional............ 74
Section 1206. Knowledge of Trustee................................ 74
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Section 1207. Application by Trustee or Paying Agent of Assets
Deposited with It................................. 74
Section 1208. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior
Indebtedness...................................... 75
Section 1209. Securityholders Authorize Trustee to Effectuate
Subordination of Securities....................... 75
Section 1210. Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................... 76
Section 1211. Right of Trustee to Hold Senior Indebtedness........ 76
Section 1212. Article Twelve Not to Prevent Events of Default..... 76
Section 1213. Trustee's Compensation Not Prejudiced............... 76
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Option to Effect Defeasance or Covenant Defeasance.. 77
Section 1302. Defeasance and Discharge............................ 77
Section 1303. Covenant Defeasance................................. 77
Section 1304. Conditions to Defeasance or Covenant Defeasance..... 78
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.. 80
Section 1306. Reinstatement....................................... 81
TESTIMONIUM........................................................ 80
SIGNATURES AND SEALS............................................... 80
ACKNOWLEDGMENTS.................................................... 81
EXHIBIT A List of Restricted Subsidiaries
EXHIBIT B Form of Initial Security
EXHIBIT C Form of Certificate of Transfer
EXHIBIT D Form of Transferee Letter of Representation
EXHIBIT E Form of Registration Rights Agreement
INDENTURE dated as of September 26, 1995 between Cablevision Systems
Corporation, a Delaware corporation (hereinafter called the "Company"), and The
Bank of New York, a state banking corporation duly incorporated and existing
under the laws of the State of New York, as trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 11 3/4%
Senior Subordinated Debentures due 2007 (hereinafter called 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;
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act.
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;
(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
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hereunder shall mean such accounting principles as are generally accepted
in the United States as of the date hereof; 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.
"Additional Preferred Stock" has the meaning set forth in Article
Fourth of the Company's Certificate of Incorporation.
"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.
"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.
"Bank Credit Agreement" means the Fourth Amended and Restated Credit
Agreement, dated as of October 14, 1994, among the Company, the Restricted
Subsidiaries party thereto, the banks party thereto, Toronto Dominion (Texas),
Inc. as agent for the Banks, and Bank of Montreal, Chicago Branch, The Bank of
New York, The Bank of Nova Scotia, The Canadian Imperial Bank of Commerce and
NationsBank of Texas, N.A., as co-agents for the Banks, as amended by Amendment
No. 1 thereto, as in effect on the date hereof and as such agreement may be
amended 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.
3
"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.
"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 and Preferred 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 (i) 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 (ii)
Annualized Operating Cash Flow determined as at the last day of the most recent
month for which financial information is available.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934 or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common 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.
4
"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.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, a Vice Chairman, its
President or a Vice President and (ii) by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary and delivered to the Trustee; provided,
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however, that such written request or order may be signed by any two of the
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officers or directors listed in clause (i) above in lieu of being signed by one
of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.
"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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" includes corporations, associations, partnerships,
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 issue
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.
5
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 of the Company, 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, (i) 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, (ii) 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, (iii) under Interest Swap Agreements (as defined in the Bank Credit
Agreement) entered into pursuant to the Bank Credit Agreement, (iv) 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 (v) 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).
"Default" means any event that 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.
"Disqualified Stock" means any Capital Stock of the Company or any
Restricted Subsidiary of the Company 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.
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"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debenture Issue Date" means the date on which the Securities
are originally issued hereunder.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect as of the date hereof.
"Global Security" means a Security 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.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation or (ii) 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,
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, however, that, with respect to the Company, the "Preferential
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Payment" payable by a Subsidiary and guaranteed by the Company, as defined in
and pursuant to the Purchase and Reorganization Agreement (the "CNYC
Agreement"), dated as of December 20, 1991, between the Company and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, as amended as of March 28, 1992 and as further amended from time to time,
shall not be deemed to be "Indebtedness" so long as the Company and such
Subsidiary are permitted to make such payment in one or more classes of the
Company's capital stock (other than Disqualified Stock) pursuant to such CNYC
Agreement and the Company and the Restricted Subsidiaries are prohibited from
making such payment in cash, debt securities, Disqualified Stock or any
combination thereof pursuant to the terms of any mortgage, indenture, credit
agreement or other instrument that secures or evidences Indebtedness for money
borrowed or guaranteed by the Company or a Restricted Subsidiary in an aggregate
amount of $10,000,000 or more; provided that, for
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7
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, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated.
"Initial Securities" means Securities other than Registered
Securities.
"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, 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 of the Company; provided that (i) Investment shall not
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include any transaction that would otherwise constitute an Investment of the
Company or a subsidiary of the Company 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 (ii) 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.
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"Junior Securities" means securities of the Company as reorganized or
readjusted or securities of the Company or any other company, trust or
corporation provided for by a plan of reorganization or readjustment, junior or
the payment of which is otherwise subordinate, at least to the extent provided
in Article Twelve hereof, to the payment of all Senior Indebtedness at the time
outstanding, and to the payment of all securities issued in exchange therefor,
to the holders of the Senior Indebtedness at the time outstanding.
"Junior Stock" means securities of the Company which are senior to all
classes or series of Common Stock of the Company and any Capital Stock,
including any series of Additional Preferred Stock hereafter created by the
Board of Directors, the terms of which Capital Stock or Additional Preferred
Stock do not expressly provide that it ranks senior to the Series G Redeemable
Exchangeable Preferred Stock as to dividends and distributions upon liquidation,
dissolution and winding-up of the Company;
"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).
"Maturity" when used with respect to any Security means the date on
which the principal of (and premium, if any) and interest on such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or Redemption Date and whether by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President or the Treasurer of
the Company and (ii) the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee; provided, however, that such certificate may be signed
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by two of the officers or directors listed in clause (i) above in lieu of being
signed by one of such officers or directors listed in such clause (i) and one of
the officers listed in clause (ii) above.
"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): (i) aggregate operating revenues minus (ii) aggregate operating
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expenses (including technical, programming, sales, selling, general
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
9
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, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in Trust Indenture Act Section
314(e) 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 cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment, redemption 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 and the Trustee or
such Paying Agent is not prohibited from paying such money to the Holders
on that date pursuant to the terms of Article Twelve of this Indenture;
provided that, if such Securities are to be redeemed, notice of such
--------
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen; and
(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
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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
10
protected in relying upon any such request, demand, direction, consent or
waiver, only Securities which 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 premium, if any) or interest on any Securities on behalf of the
Company.
"Permitted Restricted Payment" means the payment or declaration of any
dividend by the Company or the making by the Company of any other distribution
or the consummation of an exchange offer, or any combination of the foregoing,
which results in all or a portion of the Capital Stock of RPH being held by all
or any portion of the shareholders of the Company (an "RPH Transaction"), it
being understood that (i) if the Company and its Subsidiaries, after the date of
this Indenture and prior to the date of an RPH Transaction, make Investments in
RPH (in cash or assets) aggregating not more than $15,000,000, then such RPH
Transaction shall continue to constitute a "Permitted Restricted Payment" and
(ii) if the Company or any Subsidiary makes any Investment in RPH, after the
date of this Indenture and prior to the date of such RPH Transaction, that is
not permitted by the foregoing clause (i), then such RPH Transaction shall not
constitute a "Permitted Restricted Payment". For purposes of the foregoing, the
value of any Investment of assets in RPH shall be based upon the fair market
value thereof as determined by the Board of Directors of the Company, whose good
faith determination shall be conclusive.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for 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.
11
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date", when used with respect to any Securities to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"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 Security subsequently issued in exchange for or upon transfer of any
such Security.
"Registration Rights Agreement" means the Registration Rights
Agreement dated September 26, 1995 among the Company and the Initial Purchasers,
a form of which Registration Rights Agreement is attached hereto as Exhibit C.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the June 15 or December 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller 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; or
(b) any direct or indirect payment to redeem, repurchase, defease or
otherwise acquire or retire for value, or permit any Restricted Subsidiary
to redeem,
12
repurchase, 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
the Securities.
Notwithstanding the foregoing, Restricted Payments shall not include (x)
payments by any Restricted Subsidiary to the Company or any other Restricted
Subsidiary or (y) 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
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subsidiary can be or remain so designated unless (i) 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 (ii)
such subsidiary is not restricted, pursuant to the terms of any loan agreement,
note, indenture or other evidence of indebtedness, from (a) 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 of the Company, (b) making any loans or advances to the Company or
any Restricted Subsidiary of the Company or (c) 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
are 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
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may, from time to time, redesignate any Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with Section 1010 of this Indenture.
"RPH" means Rainbow Programming Holdings, Inc., a New York
corporation, or such other entity holding only (i) assets that were held by
Rainbow Programming Holdings, Inc. immediately prior to their acquisition by
such entity and (ii) such other assets that are immaterial in amount in relation
to the assets acquired by such entity from Rainbow Programming Holdings, Inc.
"Securities Act" means the Securities Act of 1933, as amended.
13
"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 Registered Securities.
"Senior Indebtedness" means the principal, premium, if any, interest
(including post-petition interest in any proceeding under any Bankruptcy Law,
whether or not such interest is an allowed claim enforceable against the debtor
in a proceeding under such Bankruptcy Law), penalties, fees and other
liabilities payable with respect to (i) all Debt of the Company, other than the
Securities and the Company's 9-7/8% Senior Subordinated Debentures due 2013, 10-
3/4% Senior Subordinated Debentures due 2004 and 9-7/8% Senior Subordinated
Debentures due 2023 (with which the Securities are intended to rank on a
parity), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, which is (x) for money borrowed, (y) evidenced by
a note or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind or (z) in respect of any
Capitalized Lease Obligations and (ii) all renewals, extensions, refundings,
increases or refinancings thereof, unless, in the case of (i) or (ii) above, the
instrument under which the Debt is created, incurred, assumed or guaranteed
expressly provides that such Debt is not senior in right of payment to the
Securities. Notwithstanding anything to the contrary contained herein, "Senior
Indebtedness" shall mean and include all amounts of Senior Indebtedness that is
such by virtue of clause (i) or (ii) of the foregoing definition that are repaid
by the Company and subsequently recovered from the holder of such Senior
Indebtedness under any applicable Bankruptcy Laws or otherwise (other than by
reason of some wrongful conduct on the part of the holders of such Debt). For
purposes of clarification, Senior Indebtedness includes any liability under
Interest Swap Agreements entered into pursuant to the Bank Credit Agreement.
"Series G Redeemable Exchangeable Preferred Stock" means the 11 3/4%
Series G Redeemable Exchangeable Preferred Stock of the Company containing the
rights, powers and privileges set forth in the Certificate of Designations dated
September 26, 1995 relating thereto.
"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,
14
now or hereafter outstanding, or the redemption, purchase, retirement or other
acquisition for value by such Person, directly or indirectly, of any shares of
any class of its capital stock, now or hereafter outstanding.
"Strategic Equity Investor" means a corporation or entity with an
equity market capitalization, a net asset value or annual revenues of at least
$1.0 billion that owns and operates businesses in the telecommunications,
information systems, entertainment, cable or similar or related industries.
"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
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the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"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.
TERM DEFINED
IN SECTION
"Act"....................................... 105
15
"Bankruptcy Law"............................ 501
"covenant defeasance"....................... 1303
"Custodian"................................. 501
"defeasance"................................ 1302
"Default Notice"............................ 1202
"Defaulted Interest"........................ 307
"incorporated provision".................... 108
"redesignation of a Restricted Subsidiary".. 1010
"Security Register"......................... 305
"Security Registrar"........................ 305
"successor"................................. 801
"U.S. Government Obligations"............... 1304
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.
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
16
(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.
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.
17
(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, 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,
18
in writing, 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 Cablevision Systems Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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 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 Sections 310 to 318,
inclusive, of the Trust Indenture Act, 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
19
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.
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, the Holders and the holders of Senior Indebtedness)
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.
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 (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, 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
20
for payment of Defaulted Interest pursuant to Section 307, or Maturity, as the
case may be, to the next succeeding Business Day.
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 Registered Securities and the Trustee's certificate of
authentication with respect thereto shall be in substantially the forms set
forth in this Article, and the Initial Securities and the Trustee's certificate
of authentication with respect thereto shall be substantially in the form of
Exhibit B, which is incorporated in and made part of this Indenture, in each
case with such appropriate 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.
The definitive Securities shall be printed, lithographed or engraved
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.
21
SECTION 202. FORM OF FACE OF REGISTERED SECURITY.
CABLEVISION SYSTEMS CORPORATION
11 3/4% SENIOR SUBORDINATED DEBENTURE DUE 2007
No. ________ $ _________________
CUSIP No. ___________________
Cablevision Systems Corporation, a Delaware corporation (herein called
the "Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns the principal sum of ______ Dollars on
October 1, 2007, at the office or agency of the Company referred to below, and
to pay interest thereon on January 1 and July 1 in each year from the Exchange
Debenture Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for at the rate of 11 3/4% 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. On any Interest Payment Date for this Security on or prior
to the Interest Payment Date on October 1, 2002, the Company may, in lieu of
payment of interest in cash, pay such interest (i) in additional Securities
having a principal amount equal to the cash interest otherwise payable or (ii)
in a combination of cash and additional Securities. The Company will pay
interest on any such Security from the date of issuance (the "Additional
Security Issue Date") of such Security or from the most recent Interest Payment
Date to which interest has been paid. The initial Interest Payment Date for
this Security shall be the first January 1 or July 1 occurring after the
Exchange Debenture Issue Date or after the Additional Security Issue Date,
whichever is later. 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 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 (in cash or
additional Securities, as provided above) 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 June
15 or December 15 (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 the Securities, 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
22
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 said Indenture. Payment of the
principal of (and premium, if any) 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 additional Securities or 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 cash 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 the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CABLEVISION SYSTEMS CORPORATION
By ____________________________
Attest:
By ___________________________
SECTION 203. FORM OF REVERSE OF REGISTERED SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 11 3/4% Senior Subordinated Debentures due 2007
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $450,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of September 26, 1995, between the Company and The Bank of New York, trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental
23
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.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by first-class mail, at any time on or after October
1, 2002, as a whole or in part, at the election of the Company, at a Redemption
Price equal to the percentage of the principal amount set forth below if
redeemed during the 12-month period beginning October 1, of the years indicated:
YEAR REDEMPTION PRICE
2002................. 105.875%
2003................. 103.917
2004................. 101.958
2005 and thereafter.. 100.000
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, all as provided in the Indenture.
Up to 33 1/3% in aggregate principal amount of the Securities is also
subject to redemption upon not less than 30 nor more than 60 days' notice by
first-class mail, at any time before October 1, 1998, at the election of the
Company, at a Redemption Price equal to 110% of the aggregate principal amount
thereof, plus accrued and unpaid interest, out of the net proceeds of the sale
of Junior Stock to a Strategic Equity Investor or a public offering of Class A
Common Stock; provided that following such redemption, at least $166,666,667
--------
aggregate principal amount of the Securities shall remain outstanding.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
24
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 the 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.
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.
The Securities are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness of the Company whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each
Securityholder by his acceptance hereof agrees to be bound by such provisions
and authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
provided for in the Indenture and appoints the Trustee his attorney-in-fact for
such purpose.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
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
25
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 or redemption 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.
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.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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.
Dated: THE BANK OF NEW YORK, as Trustee
By _____________________________
Authorized Signatory
26
SECTION 205. FORM OF LEGEND ON RESTRICTED SECURITIES.
During the period beginning on September 26, 1995 and ending on the
later of September 26, 1998 and the date three 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 on the
face of the form of Initial Security in Exhibit B hereto; 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 305 or
(c) any Registered Security issued pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement). Any Restricted Security shall bear the
legend set forth on the face of the Security in Exhibit B hereto.
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 ([INSERT DTC ADDRESS AT ISSUE DATE]) 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
27
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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 $450,000,000,
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, 906 or 1108 or pursuant to the Exchange Offer.
The Securities shall be known and designated as the "11 3/4% Senior
Subordinated Debentures due 2007" of the Company. Their Stated Maturity shall
be October 1, 2007, and they shall bear interest at the rate of 11 3/4% per
annum (except as otherwise provided for in the form of Initial Security and form
of Registered Security, as the case may be) from the Exchange Debenture 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 1, 1995 and
semiannually thereafter on January 1 and July 1 in each year and at said Stated
Maturity, until the principal thereof is paid or duly provided for. On any
Interest Payment Date for any Security on or prior to the Interest Payment Date
on October 1, 2002, the Company may, in lieu of payment of interest in cash, pay
such interest (i) in additional Securities having a principal amount equal to
the cash interest otherwise payable or (ii) in a combination of cash and
additional Securities. The Company will pay interest on any such Security from
the date of issuance (the "Additional Security Issue Date") of such Security or
from the most recent Interest Payment Date to which interest has been paid. The
initial Interest Payment Date for any Security shall be the first January 1 or
July 1 occurring after the Exchange Debenture Issue Date or after the Additional
Security Issue Date, whichever is later.
The principal of (and premium, if any) 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.
28
The Securities shall be redeemable as provided in Article Eleven.
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, one of its Vice Chairmen, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon 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
$450,000,000.
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
29
or other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the 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 Company 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 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.
If all or a portion of the Securities are to be issued in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Global Securities that (i) shall
represent such Securities and shall be in minimum denominations of $1,000, (ii)
shall be registered in the name of the Depository for such Global Security or
Securities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions and
(iv) shall bear the legend set forth in Section 206.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as 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.
30
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.
Except as otherwise described in this Section 305, 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.
If an Initial Security is a Restricted Security in certificated form,
then as provided in this Indenture and subject to the limitations herein set
forth, the Holder shall, upon transfer of such Security to a Qualified
Institutional Buyer, instruct the Trustee to arrange for such Initial Security
to be represented by a beneficial interest in a Global Security in accordance
with the customary procedures of the Depository. Upon the exchange of a
definitive Security or Securities for a beneficial interest in a Global
Security, the aggregate principal amount of such Global Security shall be
increased by an adjustment made on the records of the Trustee as custodian for
the Depository. The Trustee shall require delivery of an executed Certificate
of Transfer substantially in the form of Exhibit C hereto, indicating that such
transfer is pursuant to or in compliance with Rule 144A under the Securities
Act, as a condition of such transfer.
If an Initial Security is a Restricted Security in the form of a
Global Security, then as provided in this Indenture and subject to the
limitations herein set forth, the Depository for such Global Security may, upon
transfer of such Initial Security, instruct the Trustee to arrange for a portion
of the beneficial interest in such Global Security to be represented by a
Security in certificated form; provided, however, that, if such Initial Security
-------- -------
is transferred to a Qualified Institutional Buyer and immediately
31
thereafter shall continue to be a Restricted Security, such Initial Security
shall remain in the form of a Global Security and the Trustee shall not so
arrange for a Security in certificated form. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
to the Person specified by the Depository a new Security or Securities, of any
authorized denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security.
Interests in a Restricted Security in the form of a Global Security
shall be held only by Qualified Institutional Buyers.
Upon the exchange of a beneficial interest in a Global Security for
Securities in certificated form, the aggregate principal amount of such Global
Security shall be decreased by an adjustment made on the records of the Trustee
as custodian for the Depository. Securities in certificated form issued in
exchange for a Global Security pursuant to this Section 305 shall be registered
in such names and shall be in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee. The
Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
In the case of any transfer of any Restricted Security to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (an "Institutional Accredited Investor"),
the Trustee shall require the delivery of a signed Transferee Letter of
Representation substantially in the form of Exhibit D hereto as a condition to
such transfer.
In the case of any transfer of any Restricted Security, the Trustee
shall require delivery of an executed Certificate of Transfer substantially in
the form of Exhibit C hereto, as a condition to such transfer and in the case of
any transfer of any Restricted Security to an Institutional Accredited Investor,
to non-U.S. persons outside the United States within the meaning of Regulation S
under the Securities Act or to any other Person in a transaction referred to in
Clause (F) of the legend on the face of the Form of Initial Security set forth
in Exhibit B hereto, the Trustee may require, and if so directed by the Company,
shall require, delivery of such certifications, opinions and other information
as is contemplated in such Certificate of Transfer, as a condition to such
transfer.
Except as otherwise provided in this Section 305, a Global Security is
exchangeable for Securities in certificated form only if (x) the Depository is
at any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 30 days or (y) there shall be
occurred and be continuing an Event of Default or (z) the Company at any time
determines not to have Securities represented
32
by a Global Security. In addition, in accordance with the provisions of this
Indenture and subject to certain limitations herein set forth, an owner of a
beneficial interest in a Global Security which is an Initial Security may
request a Security in certificated form, in exchange in whole or in part, as the
case may be, for such beneficial owner's interest in the Global Security.
Upon any exchange provided for in the preceding paragraph, the Company
shall execute and the Trustee shall authenticate and deliver to the Person
specified by the Depository a new Security or Securities registered in such
names and in such authorized denominations as the Depository, pursuant to the
instructions of the beneficial owner of the Securities requesting the exchange,
shall instruct the Trustee. Thereupon, the beneficial ownership of such Global
Security shown on the records maintained by the Depository or its nominee shall
be reduced by the amounts so exchanged and an appropriate endorsement shall be
made by or on behalf of the Trustee on the Global Security.
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 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 or redemption, 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 Section 305, and the Holder of each Restricted
Security, by such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer.
The Trustee shall notify the Company of any proposed transfer of a
Restricted Security to any Person.
The restrictions imposed by this Section 305 upon the transferability
of any particular Restricted Security shall cease and terminate (a) on the later
of September 26, 1998 and three 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 (b) (if earlier) if and when
such Restricted Security has been sold pursuant to an effective registration
statement under the Securities Act. Any Restricted
33
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 this 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 (a) the effective date of any Registration Statement
registering the Initial Securities under the Securities Act and (b) at the
request of the Trustee, the date which is three 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.
No service charge shall be made for any registration of transfer or
exchange or redemption 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, 906 or 1108 not involving any transfer.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in certificated
registered form, a Global Security representing Book-Entry Securities may not be
transferred, except as a whole by the Depository to a nominee of the Depository
or by another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
Notwithstanding the foregoing, no Global Security shall be registered
for transfer or exchange, or authenticated and delivered, whether pursuant to
this Section, Section 304, 306, 906 or 1108 or otherwise, in the name of a
Person other than the Depository for such Global Security or its nominee until
(i) the Depository notifies the Company that it is unwilling or unable to
continue as 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 30 days, (ii) the
Company executes and delivers to the Trustee a Company Order that all such
Global Securities shall be exchangeable or (iii) there shall have occurred and
be continuing an Event of Default; provided that the foregoing restriction shall
--------
not prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. Upon the occurrence in respect of
any Global Security representing the Securities of any one or more of the
conditions specified in clauses (i), (ii) and (iii) of the preceding sentence,
such Global Security may be registered for transfer or exchange for Initial
Securities registered in the names of, authenticated and delivered to, such
Persons as the Trustee or the Depository, as the case may be, shall direct.
34
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, Section 304, 306, 906 or 1108 or
otherwise, shall also be a Global Security and bear the legend specified in
Section 206.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
(i) 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing or (ii) 15 days before an Interest Payment Date and
ending on the close of business on the Interest Payment Date, or (b) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of Securities being redeemed in part.
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 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,
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 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.
35
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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. On any
Interest Payment Date for any Security on or prior to the Interest Payment Date
on October 1, 2002, the Company may, in lieu of payment of interest in cash, pay
such interest (i) in additional Securities having a principal amount equal to
the cash interest otherwise payable or (ii) in a combination of cash and
additional Securities. The Company will pay interest on any such Security from
the Additional Security Issue Date of such Security or from the most recent
Interest Payment Date to which interest has been paid. The initial Interest
Payment Date for any Security shall be the first January 1 or July 1 occurring
after the Exchange Debenture Issue Date or after the Additional Security Issue
Date, whichever is later.
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 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
36
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, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
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 premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all
37
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by the Company pursuant to a Company Order, provided, however, that the
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Trustee shall not be required to destroy such cancelled Securities.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
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. APPLICABILITY OF PROVISIONS.
Notwithstanding anything herein to the contrary, the Company shall
have no obligations hereunder prior to the Exchange Debenture Issue Date and the
provisions hereof, other than the provisions of Section 901, shall not be
applicable prior to the Exchange Debenture Issue Date.
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
38
(a) either
(1) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
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 premium,
if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(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 607 and, if money shall
have been deposited with
39
the Trustee pursuant to subclause (2) of Subsection (a) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the Trustee.
Money so held in trust shall not be subject to the provisions of Article Twelve
of this Indenture.
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, whether or not such payment shall be prohibited by the
provisions of Article Twelve hereof;
(b) the Company defaults in the payment of the principal or premium,
if any, of any Security when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise, whether or not such payment
shall be prohibited by the provisions of Article Twelve hereof;
(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
40
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 of competent jurisdiction against the Company or any
Restricted Subsidiary of the Company and either (i) an enforcement
proceeding shall have been commenced by any 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,
41
(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 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 Securities then Outstanding, 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, premium, if any, 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 upon the first to occur of an
acceleration under the Bank Credit Agreement or 10 days after receipt by the
Company and the agents, if any, under the Bank Credit Agreement 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
Securities then Outstanding, 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
42
of, premium, if any, 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 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., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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 (or premium, if
any, on) 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 premium, if any) and interest, with interest upon
the overdue principal (and premium, if any) 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
43
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 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
premium, if any) 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
44
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.
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.
Subject to Article Twelve any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) 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 premium, if any) and
interest; and
THIRD: The balance, if any, to the Company.
45
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
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(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,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective due dates expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
46
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.
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 Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided that
--------
(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.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities 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
(a) in the payment of the principal of (or premium, if any) 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,
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 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 Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date); 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
48
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
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 known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
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the case of a default in the payment of the principal of (or premium, if any) 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
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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 rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
49
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(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 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;
(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.
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
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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 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 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 Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust,
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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, 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 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 9-
7/8% Senior Subordinated Debentures due 2013, the indenture, dated as of April
1, 1992, for the Company's 10-3/4% Senior Subordinated Debentures due 2004 and
the indenture, dated as of April 1, 1993, for the Company's 9-7/8% Debentures
due 2023 shall be 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 which shall be
eligible to act as Trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $25,000,000 to the extent
there is such an institution eligible and willing to serve. If such corporation
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, 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. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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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 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.
(d) If at any time:
(1) 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
(2) 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
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) 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
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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.
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
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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
54
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).
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 September 1 of each year commencing with the
first September 1 after the Exchange Debenture 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 September 1 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;
(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; 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 Company pursuant to Subsections (a)
and (b) of this Section 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:
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(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.
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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
At any time prior to the Exchange Debenture Issue Date, the Company
may terminate this Indenture by written notice to the Trustee after which time,
the Company may not elect to issue any Securities hereunder.
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;
(d) to secure the Securities, if the Company so elects;
(e) to make any changes necessary to qualify the Indenture under the
Trust Indenture Act in connection with the Exchange Offer or Shelf
Registration (in each case, as defined in the Registration Rights
Agreement); or
(f) to make any other change that does not adversely affect the rights
of any Holder.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of 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,
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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 any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any
Security or any premium 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, in the case of redemption, on or after the
Redemption Date); 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 or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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
59
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
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
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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
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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 (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of (and
premium, if any) 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 (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of 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, that
such Paying Agent will:
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(a) hold all sums held by it for the payment of the principal of (and
premium, if any) 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 (and premium, if any) 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 (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
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 of the Company 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
62
Company), right, license or franchise if the Board of Directors of the Company,
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
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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 of the Company 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 shall prevent the Company or any
--------
Restricted Subsidiary of the Company from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or the Restricted Subsidiary concerned, or of any officer (or other
agent employed by the Company or any Restricted Subsidiary of the Company) 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 Securityholders.
The Company shall provide or cause to be provided, for itself and any
Restricted Subsidiaries of the Company, 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.
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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 unless, after giving
effect thereto, the Cash Flow Ratio shall be less than or equal to 9 to 1.
SECTION 1008. LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become liable for, contingently or otherwise, or become
responsible for the payment of, contingently or otherwise, any Indebtedness
which is senior in right of payment to the Securities and expressly subordinate
in right of payment to any other Indebtedness of the Company. For purposes of
this Section 1008, Indebtedness is deemed to be "senior" in right of payment to
the Securities if it is not subordinate in right of payment to Senior
Indebtedness at least to the same extent as the Securities are subordinate to
Senior Indebtedness.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
Except as otherwise provided in this Section 1009, the Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment if (a) at the time of such proposed Restricted
Payment, a Default or Event of Default shall have occurred and be continuing or
shall occur as a consequence of such Restricted Payment or (b) immediately after
giving effect to 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:
(i) $25,000,000, plus
(ii) an amount equal to the difference between (A) the Cumulative Cash
Flow Credit and (B) 1.2 multiplied by Cumulative Interest Expense.
For purposes of this Section 1009, the amount of any Restricted
Payment or Permitted Restricted Payment, if other than cash, shall be based upon
fair market value as determined by the Board of Directors of the Company, whose
good faith determination shall be conclusive.
The 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
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such payment complied with the provisions hereof; (ii) the retirement or
redemption 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 substantially concurrent sale of, other shares of its capital
stock or warrants, rights or options to acquire capital stock of the Company
(other than Disqualified Stock); and (iii) the redemption of or payments of cash
dividends on the Company's 8% Series C Cumulative Preferred Stock (the "Series C
Preferred Stock") outstanding on January 1, 1995, which redemptions or dividends
are provided for by the terms of the Series C Preferred Stock in effect on the
date hereof (or the redemption of or payment of cash dividends on any security
of the Company issued in exchange for or upon the conversion of such Series C
Preferred Stock; provided that the aggregate amount payable pursuant to the
--------
terms of such security is no greater than the aggregate amount payable pursuant
to the terms of the Series C Preferred Stock). 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 clauses (i) and (iii) 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
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paragraph shall be included only to the extent that such amounts were not
previously included in calculating Restricted Payments.
Notwithstanding the foregoing, so long as no Default or Event of
Default shall have occurred and be continuing, the Company may make any
Permitted Restricted Payment; provided, however, that such Permitted Restricted
-------- -------
Payment shall thereafter be counted as a Restricted Payment for purposes of
calculating whether any future Restricted Payments are permitted under this
Section 1009.
For the purpose 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 of the
Company and evidenced by a resolution of such Board, whose good faith
determination shall be conclusive). 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 Company's financial statements affecting Cumulative
Cash Flow Credit or Cumulative Interest Expense for any period.
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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, (i) make any Investment or (ii) allow any Restricted
Subsidiary to become an Unrestricted Subsidiary (a "redesignation of a
Restricted Subsidiary"), in each case unless (a) 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 (b) 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 (i)
any renewal or reclassification of any Investment existing on the date hereof or
(ii) 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 of the Company, 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 of the Company
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 Payment or Permitted Restricted Payment
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 Securities Exchange Act of 1934.
(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
66
after the end of each fiscal year after the Exchange Debenture Issue Date,
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 Securities Exchange Act
of 1934, 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 Securities Exchange Act of 1934, 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 Securities Exchange Act of 1934, 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 the Exchange Debenture Issue Date, 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 to be complied with
by it 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 Securities at the time outstanding shall, 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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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed, at the election of the Company, as a
whole or from time to time in part, subject to the conditions and at the
Redemption Prices specified in the form of Security, together with accrued
interest to the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by it (unless a shorter notice period shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 60
days and not less than 30 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, either pro rata
or by lot, and the amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
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SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a Security to be redeemed in part, the
principal amount) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon shall cease to accrue on and after said date; and
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at its request, by the Trustee in
the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in same day funds (or New York Clearing House funds if such deposit is
made prior to the applicable Redemption Date) sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
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SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
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Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Regular Record Dates according to the terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at the rate
borne by such Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company designated for such purpose pursuant to
Section 1002 (with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar or the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SUBORDINATION
SECTION 1201. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees, that the payment of all amounts due in respect
of the Securities, including any liquidated damages payable in respect of the
Securities, are subordinated, to the extent and in the manner provided in this
Article Twelve, to the prior
70
payment in full of all Senior Indebtedness. For purposes of this Article
Twelve, "liquidated damages" shall mean liquidated damages payable pursuant to
the first paragraph of text of the Form of Initial Security and pursuant to
Section Three of the Registration Rights Agreement.
This Article Twelve shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and they
and/or each of them may enforce such provisions.
SECTION 1202. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration (unless waived, rescinded or annulled) or otherwise, or upon any
payment default (with or without the giving of notice or lapse of time or both,
in accordance with the terms of the instrument governing such Senior
Indebtedness, and without any waiver or forgiveness) with respect to any Senior
Indebtedness, all amounts payable thereon shall first be paid in full, or such
payment duly provided for in cash or in a manner satisfactory to the holders of
such Senior Indebtedness, before any payment is made, directly or indirectly by
set off or otherwise, on account of principal of, or interest on, or liquidated
damages, if any, with respect to, the Securities or on account of the
Registration Rights Agreement or to acquire any of the Securities or on account
of the redemption provisions of the Securities.
(b) Upon a default with respect to any Senior Indebtedness (other than
under circumstances when the terms of paragraph (a) of this Section are
applicable), as such default is defined therein or in the instrument under
which it is outstanding, permitting the holders to accelerate the maturity
thereof, upon written notice thereof given to the Company and the Trustee by the
agent or agents under the Bank Credit Agreement ("Default Notice"), then, unless
and until such default shall have been cured or waived by the holders of such
Senior Indebtedness or shall have ceased to exist, no direct or indirect payment
shall be made by the Company with respect to the principal of, interest on, or
liquidated damages, if any, with respect to the Securities (other than payments
made in Junior Securities) or on account of the Registration Rights Agreement or
to acquire any of the Securities or on account of the redemption provisions of
the Securities; provided, however, that this paragraph (b) shall not prevent the
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making of any payment (which is not otherwise prohibited by paragraph (a)) for
more than 120 days after the Default Notice shall have been given unless the
Senior Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such payment may be
made until such acceleration has been rescinded or annulled or such Senior
Indebtedness has been paid in full. Notwithstanding the foregoing, not more
than
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one Default Notice shall be given with respect to Senior Indebtedness within a
period of 240 consecutive days.
(c) If, notwithstanding the foregoing provisions of this Section, any
payment on account of principal of, interest on or liquidated damages, if any,
with respect to the Securities or on account of the Registration Rights
Agreement shall be received by the Trustee, by any Holder or by any Paying Agent
(or, if the Company is acting as its own Paying Agent, money for any such
payment is segregated and held in trust), then, unless and until such payment is
no longer prohibited by this Section, such payment (subject to the provisions of
Sections 1206 and 1207) shall be held in trust for the benefit of the holders of
Senior Indebtedness and, upon notice to the Trustee or such Paying Agent from
the representative of the holders of the Senior Indebtedness and pursuant to the
directions of such representative, shall be paid over or delivered to the
holders of Senior Indebtedness or their representative(s), ratably according to
the aggregate amount remaining unpaid on account of the principal of and
interest on the Senior Indebtedness held or represented by each, for application
to the payment or prepayment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution or
provision therefor to or for the holders of Senior Indebtedness. Promptly after
becoming aware thereof, the Company shall give written notice to the Trustee of
any event prohibiting payments on account of principal of, interest on or
liquidated damages, if any, with respect to the Securities or on account of the
Registration Rights Agreement and, in such event, shall provide to the Trustee,
in the form of an Officers' Certificate, the names and addresses of the holders
of such Senior Indebtedness and their representative(s), if any, the amount of
the Senior Indebtedness held by each such holder, any information necessary to
calculate the daily or other increase in Senior Indebtedness held by such
holders and any other information which the Trustee may reasonably request to
comply with this Article. Subject to the provisions of Section 1203 hereof, in
the event that the Trustee or the Paying Agent reasonably determines that
additional evidence is required with respect to any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee or the Paying Agent, as the case may be, may request that
such person furnish evidence to its reasonable satisfaction as to the amount of
Senior Indebtedness held by each such person, as to the extent such person is
entitled to participate in such payment or distribution and as to other facts
pertinent to the rights of such persons under this Article and if such evidence
is not furnished, the Trustee or the Paying Agent, as the case may be, may defer
any payment to such person pending judicial determination as to the right of
such person to receive such payment.
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SECTION 1203. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, WINDING-UP, LIQUIDATION OR REORGANIZATION OF THE
COMPANY.
Upon any payment by or distribution of the assets of the Company to
creditors upon any dissolution, winding-up, liquidation or reorganization of the
Company (whether in a bankruptcy or reorganization case, insolvency or
receivership proceedings, voluntary liquidation or upon any assignment for the
benefit of creditors or otherwise):
(1) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of all amounts payable thereon, or provision shall
be made for such payment, before the Holders are entitled to receive any
payment on account of the principal of, interest on or liquidated damages,
if any, with respect to the Securities or on account of the Registration
Rights Agreement;
(2) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities (other than
Junior Securities) to which the Holders or the Trustee on behalf of the
Holders would be entitled except for the provisions of this Article Twelve,
including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other Indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid
by the liquidating trustee or agent or other Person making such a payment
or distribution, directly to the holders of Senior Indebtedness or their
representative(s), ratably according to the aggregate amounts remaining
unpaid on account of the principal of and interest on the Senior
Indebtedness held or represented by each, for application to payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full after giving effect to any concurrent payment
or distribution, or provision therefor, to the holders of such Senior
Indebtedness; and
(3) if, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities (other than Junior Securities) shall be received by the
Trustee or the Holders or any Paying Agent (or, if the Company is acting as
its own Paying Agent, money for any such payment or distribution is
segregated or held in trust) on account of principal of, interest on or
liquidated damages, if any, with respect to the Securities or on account of
the Registration Rights Agreement before all Senior Indebtedness is paid in
full, or effective provision made for its payment, such payment or
distribution (subject to the provisions of Sections 1206 and 1207) shall be
received and held in trust for and shall be paid over to the holders of the
Senior Indebtedness remaining unpaid or unprovided for or their
representative(s), ratably according to the aggregate amounts remaining
unpaid on account of the
73
principal of and interest on the Senior Indebtedness held or represented by
each, for application to payment or prepayment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution, or
provision therefor, to the holders of such Senior Indebtedness.
If the Company effects a transaction permitted by Article Eight, such
transaction shall not be deemed to be a dissolution, winding-up, liquidation or
reorganization of the Company for purposes of this Section.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
Upon any distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Sections 601 and 602, and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up or liquidation
proceeding, or bankruptcy or reorganization case, is pending, or a certificate
of the liquidating trustee or agent or other Person making any distribution to
the Trustee or to the Holders, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness of the Company and other Indebtedness of the Company, the amount
thereof payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article.
SECTION 1204. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS
OF SENIOR INDEBTEDNESS.
Upon payment in full of all Senior Indebtedness, the Holders of
Securities shall be subrogated (equally and ratably with the holders of all
Indebtedness of the Company which by its terms is not superior in right of
payment to the Securities and which ranks on a parity with the Securities) to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purposes of such subrogation no payments or distributions to the holders of
Senior Indebtedness by the Company to which the Holders would be entitled except
for the provisions of this Article, and no payment pursuant to the provisions of
this Article to the holders of Senior Indebtedness shall, as between the
Company, its creditors (other than the holders of Senior Indebtedness) and the
Holders, be deemed to be payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article are
intended solely for the purpose of defining the relative rights
74
of the Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article shall have been
applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under the Senior Indebtedness, then and in such case, the
Company specifically agrees that the Holders shall be entitled to receive from
the holders of such Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full.
SECTION 1205. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between the
Company, its creditors (other than the holders of Senior Indebtedness) and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on or liquidated damages, if
any, with respect to the Securities or on account of the Registration Rights
Agreement as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders and creditors of
the Company (other than the holders of Senior Indebtedness), nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 1206. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee, or the taking of any other action under this Indenture by the
Trustee, unless and until two Business Days after the Trustee shall have
received written notice thereof from the Company, any Securityholder, any Paying
Agent or any holder of Senior Indebtedness or its representative.
SECTION 1207. APPLICATION BY TRUSTEE OR PAYING AGENT OF ASSETS
DEPOSITED WITH IT.
If on a date not less than two Business Days prior to the date on
which by the terms of this Indenture any monies deposited with the Trustee or
any Paying Agent
75
(other than the Company, if it acts as Paying Agent) may become payable for any
purpose (including, without limitation, the payment of either principal of,
interest on or liquidated damages, if any, with respect to any Security) the
Trustee or such Paying Agent shall not have received with respect to such
payment the written notice provided for in Section 1206, then the Trustee or
such Paying Agent shall have full power and authority to receive such monies and
to apply them to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date, without, however, limiting any rights that holders of Senior
Indebtedness may have to recover any such payments from the Holders in
accordance with the provisions of this Article.
SECTION 1208. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness may extend, renew, modify, or increase Senior
Indebtedness or amend the terms of the Senior Indebtedness or any security or
guarantee therefor and release, sell or exchange such security or guarantee and
otherwise deal freely with the Company, all without affecting the liabilities
and obligations of the parties to this Indenture or the Holders.
SECTION 1209. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder by his acceptance of the Securities authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in a bankruptcy or reorganization case,
insolvency or receivership proceedings, voluntary liquidation or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the immediate filing of a
claim for the unpaid balance of its or his Securities in the form required in
such proceeding and cause such claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in such proceeding on
or prior to 30 days before the expiration of the time to file such claim or
claims, then the holders of the Senior Indebtedness or their representative(s)
are hereby authorized to have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders.
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SECTION 1210. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
Neither the Trustee nor any Paying Agent (including the Company if the
Company acts as Paying Agent) shall be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. Neither the Trustee nor any Paying Agent shall
be liable to any such holder (subject to Section 1206 hereof, except for its own
gross negligence or willful misconduct) if any of them shall mistakenly pay over
or distribute to Securityholders, the Company or any other person monies or
assets to which any holders of Senior Indebtedness shall be entitled by virtue
of this Article or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee or the Paying Agent undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article, and no implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee or the Paying Agent.
SECTION 1211. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
SECTION 1212. ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default under Section 501.
Nothing contained in this Article Twelve shall limit the right of the Trustee or
the Holders of Securities to take any action to accelerate the maturity of the
Securities pursuant to Section 502 or to pursue any rights or remedies
hereunder; provided that all Senior Indebtedness then or thereafter due or
--------
declared to be due shall first be paid in full before the Holders or the Trustee
are entitled to receive any payment from the Company of principal of, interest
on or liquidated damages, if any, with respect to the Securities.
SECTION 1213. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to Section 606.
77
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. 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 1302 or Section 1303 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1302, 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 1305 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
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 1304 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (D) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option under this Section
1302 notwithstanding the prior exercise of its option under Section 1303 with
respect to the Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1303, 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
78
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 1301 of the option
applicable to Section 1303, Sections 501(c) through 501(e) shall not constitute
Events of Default.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1302 or Section 1303 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 shall agree to comply with the provisions of this
Article Thirteen 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 premium, if any) and interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of
principal (and premium, if any) 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)
79
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).
(3) No event or condition shall exist that, pursuant to the provisions
of Section 1202 or 1203, would prevent the Company from making payments of
the principal of (and premium, if any) or interest on the Securities on the
date of such deposit or 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).
(4) 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.
(5) In the case of an election under Section 1302, 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 September 26, 1995,
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.
80
(6) In the case of an election under Section 1303, 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.
(7) In the case of an election under either Section 1302 or 1303, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1302 or 1303 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.
(8) 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 1302 or the covenant defeasance under Section 1303
(as the case may be) have been complied with.
SECTION 1305. 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 1305, the "Trustee") pursuant to Section 1304 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
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law. 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 1304 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.
81
Anything in this Article Thirteen 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 1304 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
1304(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 1306. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303, 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 1302 or 1303, 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 1302 or 1303, as the case may be; provided, however,
-------- -------
that, if the Company makes any payment of principal of (or premium, if any) or
interest on any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
* * * * *
82
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, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CABLEVISION SYSTEMS CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Title: Vice Chairman
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: Executive Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK
By
-----------------------------
Title:
Attest:
-----------------------------
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NASSAU )
On the 22nd day of September, 1995, before me personally came ▇▇▇▇▇▇▇
▇. ▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇; that he is Vice Chairman of
Cablevision Systems Corporation, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like authority.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
84
STATE OF )
) ss:
COUNTY OF )
On the _____ day of ___________, 1995, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that s/he resides at ____________________________________; that s/he is
________________________ of ____________________, one of the corporations
described in and which executed the above instrument; that s/he knows the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that s/he signed her/his name thereto
pursuant to like authority.
[Notarial Seal]
-------------------------------
EXHIBIT A
LIST OF RESTRICTED SUBSIDIARIES
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Finance Corporation
Cablevision Finance Limited Partnership
Cablevision Programming of Southern Connecticut,
Limited Partnership
Cablevision Systems Dutchess Corporation
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 Suffolk Corporation
Cablevision Systems Westchester Corporation
Cablevision Systems of Southern Connecticut Limited
Partnership
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Michigan, Inc.
Cablevision of New Jersey, Inc.
Communications Development Corporation
Cablevision Lightpath, Inc. (f/k/a NuComm Test, Inc.)
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF SEPTEMBER 26, 1995
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)............................. 607(a)
(a)(2)............................. 607(a)
(b)................................ 607(b), 608
(S) 312(c)................................ 701
(S) 314(a)................................ 703
(a)(4)............................. 1004
(c)(1)............................. 102
(c)(2)............................. 102
(e)................................ 102
(S) 315(b)................................ 601
(S) 316(a)(last
sentence).............................. 101 ("Outstanding")
(a)(1)(A).......................... 502, 512
(a)(1)(B).......................... 513
(b)................................ 508
(c)................................ 104(e)
(S) 317(a)(1)............................. 503
(a)(2)............................. 504
(b)................................ 1003
(S) 318(a)................................ 111
EXHIBIT B
FORM OF INITIAL SECURITY
[FORM OF FACE OF INITIAL SECURITY.]
[INSERT LEGEND PER SECTION 206 IF A GLOBAL SECURITY.]
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. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS THREE YEARS AFTER THE LATER OF SEPTEMBER 26, 1995 AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY) 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 UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) 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, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3)
OR (A)(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT (AND IF
ACQUIRING THE SECURITIES FROM SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" IS
ACQUIRING NOT LESS THAN $250,000 PRINCIPAL AMOUNT OF DEBENTURES), OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, PROVIDED THAT AN INITIAL HOLDER THAT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" HOLDING AS DESCRIBED IN CLAUSE (E) ABOVE SHALL NOT BE
PERMITTED TO TRANSFER THIS SECURITY TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF
B-2
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT;
PROVIDED FURTHER THAT THE COMPANY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY) OF COUNSEL
SATISFACTORY TO THE COMPANY, AND CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO TRUSTEE.
B-3
CUSIP NO.
CABLEVISION SYSTEMS CORPORATION
11 3/4% SENIOR SUBORDINATED DEBENTURE DUE 2007
No. ________ $ _______________
CUSIP NO. _______
Cablevision Systems Corporation, a Delaware corporation (herein called
the "Company", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________________________________ or registered assigns the principal sum of
____________________________ Dollars on October 1, 2007, at the office or agency
of the Company referred to below, and to pay interest thereon on January 1, 1996
and semiannually thereafter, on January 1 and July 1 in each year, from the
Exchange Debenture Issue Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 11 3/4% per
annum (except as provided in the following three sentences), 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. In the
event that either (i) a registration statement under the Securities Act with
respect to an exchange offer for the Company's 11 3/4% Series G Redeemable
Exchangeable Preferred Stock or the Securities (the "Exchange Offer") is not
filed with the Securities and Exchange Commission (the "Commission") on or prior
to October 26, 1995 or (ii) the Exchange Offer is not consummated or a
registration statement under the Securities Act with respect to resales of the
Company's 11 3/4% Series G Redeemable Exchangeable Preferred Stock or the
Securities (the "Shelf Registration Statement") is not declared effective by the
Commission on or prior to March 26, 1996, in either case in accordance with the
Registration Rights Agreement dated September 26, 1995 among the Company and the
Initial Purchasers, the aforesaid interest rate borne by the Securities shall be
increased by one-quarter of one percent per annum for the first 30 days
following October 26, 1995 in the case of (i) above, or the first 90 days
following March 26, 1996 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 the Securities will be reduced to the original interest
rate. On any Interest Payment Date for this Security on or prior to the
Interest Payment Date on October 1, 2002, the Company may, in lieu of payment of
interest in cash,
B-4
pay such interest (i) in additional Securities having a principal amount equal
to the cash interest otherwise payable or (ii) in a combination of cash and
additional Securities. The Company will pay interest on any such Security from
the date of issuance (the "Additional Security Issue Date") or from the most
recent Interest Payment Date to which interest has been paid. The initial
Interest Payment Date for this Security shall be the first January 1 or July 1
occurring after the Exchange Debenture Issue Date or after the Additional
Security Issue Date, whichever is later. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid (in cash or additional Securities, as
provided above) 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 June 15 or December 15
(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 the Securities, 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 said Indenture. Payment of the principal of (and premium, if any)
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
additional Securities or 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 cash 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 the Indenture, or be valid
or obligatory for any purpose.
B-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CABLEVISION SYSTEMS CORPORATION
By ____________________________
Attest:
By _____________________________
[FORM OF REVERSE OF INITIAL SECURITY.]
This Security is one of a duly authorized issue of securities of the
Company designated as its 11 3/4% Senior Subordinated Debentures due 2007
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $450,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of September 26, 1995, between the Company and The Bank of New York, trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, 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.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by first-class mail, at any time on or after October
1, 2002, as a whole or in part, at the election of the Company, at a Redemption
Price equal to the percentage of the principal amount set forth below if
redeemed during the 12-month period beginning October 1, of the years indicated:
YEAR REDEMPTION PRICE
---- ----------------
2002 105.875%
2003 103.917
2004 101.958
2005 and thereafter 100.000
B-6
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, all as provided in the Indenture.
Up to 33 1/3% in aggregate principal amount of the Securities is also
subject to redemption upon not less than 30 nor more than 60 days' notice by
first-class mail, at any time before October 1, 1998, at the election of the
Company, at a Redemption Price equal to 110% of the aggregate principal amount
thereof, plus accrued and unpaid interest, out of the net proceeds of the sale
of Junior Stock to a Strategic Equity Investor or a public offering of Class A
Common Stock; provided that following such redemption, at least $166,666,667
--------
aggregate principal amount of the Securities shall remain outstanding.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
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 the 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.
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
B-7
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Security.
The Securities are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness of the Company whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each
Securityholder by his acceptance hereof agrees to be bound by such provisions
and authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
provided for in the Indenture and appoints the Trustee his attorney-in-fact for
such purpose.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
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.
Subject to the restrictions on transfer set forth on the face hereof,
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 or redemption 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.
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,
B-8
whether or not this Security be overdue, and neither the Company, the Trustee
nor any agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-9
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By _____________________________
Authorized Signatory
B-10
[FOR GLOBAL SECURITY]
SCHEDULE OF EXCHANGES FOR DEFINITIVE DEBENTURES
-----------------------------------------------
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:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Security authorized
Principal Principal in global form officer 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
---------- -------------- -------------- -------------- ------------
EXHIBIT C
FORM OF 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:
[_] Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act");
or
[_] 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;
or
[_] To an institutional "accredited investor" within the meaning of
subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring the Security for its own account or for the
account of such an institutional "accredited investor" for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act (and if
acquiring the Security from such an institutional "accredited
investor", is acquiring not less than $250,000 principal amount of
Securities); provided that the transferor hereof was not an initial
-------- ----
holder in such Security
and did not acquire such Security as an institutional "accredited
investor" holding as described above.
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 of 1933, as
amended.
In addition, if the transferee is an institutional accredited
investor, a purchaser who is not a U.S. person, or is a purchaser in a
transaction referred to in clause (F) of the legend on the face of the Security,
the holder must furnish to the Trustee and the Company and the Trustee shall
refuse to register such Security in the name of anyone other than the registered
holder thereof if it does not receive (i) in the case of an institutional
accredited investor, a signed letter substantially in the form of Exhibit D to
the Indenture containing certain representations and agreements relating to the
restrictions on transfer of the security evidenced hereby, and (ii) such other
certifications, legal opinions or other information as the Trustee or the
Company may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended, and in
accordance with the provisions thereof.
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.
EXHIBIT D
FORM OF TRANSFEREE LETTER OF REPRESENTATION
Cablevision Systems Corporation
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of $_____ aggregate principal
amount of the 11 3/4% Senior Subordinated Debentures due 2007 (the "Debentures")
of Cablevision Systems Corporation, a Delaware Corporation (the "Company"):
1. We understand that the Debentures have not been registered under
the Securities Act of 1933, as amended (the Securities Act"), and may not
be sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
Debentures to offer, sell or otherwise transfer such Debentures prior to
the date which is three years after the later of the date of original issue
and the last date on which the Company or any affiliate of the Company was
the owner of such Debentures (or any predecessor thereto) (the "Resale
Restriction Termination Date") 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 Debentures are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A,
(d) 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,
(e) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
that is acquiring the Debentures for its own account or for the account of
such an institutional "accredited investor" for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act and that, if acquiring the Debentures
from such an institutional "accredited investor", is acquiring not less
than $250,000 principal amount of Debentures or (f) pursuant to any other
available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that
the disposition of our property or the property of such investor account or
accounts be at all times within our or their control and to compliance with
any applicable state securities laws; provided that an initial holder that
is an institutional "accredited investor" holding as described in clause
(e) above shall not be permitted to transfer the Debentures to an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act. The
D-2
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the
Debentures is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act and that it is
acquiring such Debentures for investment purposes and not for distribution
in violation of the Securities Act. Each purchaser acknowledges that the
Company and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Debentures
pursuant to clauses (d), (e) and (f) above to require the delivery of an
opinion of counsel, certifications and/or other information satisfactory to
the Company and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) that
is acquiring the Debentures for our own account or for the account of such
an institutional "accredited investor" (and, if acquiring the Debentures
from such an institutional "accredited investor" are acquiring not less
than $250,000 principal amount of Debentures) and we are acquiring the
Debentures for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities
Act and we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Debentures, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
3. We are acquiring the Debentures purchased by us for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion.
4. You are entitled to rely upon this letter, and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
-----------------------
Date:_____________________
D-3
Upon transfer, the Debentures would be registered in the name of the
new beneficial owner as follows:
Name: ___________________________
Address: ________________________
Taxpayer ID Number: _____________
EXHIBIT E
FORM OF REGISTRATION RIGHTS AGREEMENT
