Exhibit 4.18
AT&T BROADBAND CORP., AS ISSUER
THE CABLE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK, AS TRUSTEE
INDENTURE
DATED AS OF SEPTEMBER [ ], 2002
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined..............................................................................1
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally....................................................................................9
Section 2.02. Form of Trustee's Certification of Authentication..................................................9
Section 2.03. Amount Unlimited; Issuable in Series...............................................................9
Section 2.04. Authentication and Delivery of Securities.........................................................10
Section 2.05. Execution of Securities...........................................................................12
Section 2.06. Certificate of Authentication.....................................................................12
Section 2.07. Denomination and Date of Securities; Payments of Interest.........................................12
Section 2.08. Registration, Transfer and Exchange...............................................................13
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.........................................16
Section 2.10. Cancellation of Securities; Destruction Thereof...................................................16
Section 2.11. Temporary Securities..............................................................................17
Section 2.12. Computation of Interest...........................................................................17
Section 2.13. CUSIP Numbers.....................................................................................17
ARTICLE 3
COVENANTS OF THE ISSUER, THE CABLE GUARANTORS AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest.................................................................17
Section 3.02. Offices for Payments, etc.........................................................................18
Section 3.03. Paying Agents.....................................................................................18
Section 3.04. Certificate of the Issuer.........................................................................19
Section 3.05. Securityholders Lists.............................................................................20
Section 3.06. Reports by the Issuer.............................................................................20
Section 3.07. Corporate Existence...............................................................................21
Section 3.08. Restrictions on Mergers, Sales and Consolidations.................................................21
Section 3.09. Further Assurances................................................................................21
Section 3.10. Limitation on Liens...............................................................................21
Section 3.11. Limitation on Sale and Leaseback Transactions.....................................................21
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default.............................21
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.....................................24
Section 4.03. Application of Proceeds...........................................................................26
Section 4.04. Suits for Enforcement.............................................................................26
-i-
Section 4.05. Restoration of Rights on Abandonment of Proceedings...............................................27
Section 4.06. Limitations on Suits by Securityholder............................................................27
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits.................................27
Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...........................27
Section 4.09. Control by Securityholders........................................................................28
Section 4.10. Waiver of Past Defaults...........................................................................28
Section 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances......................29
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs......................................29
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default......................29
Section 5.02. Certain Rights of the Trustee.....................................................................31
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof32
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc..........................................32
Section 5.05. Moneys Held by Trustee............................................................................32
Section 5.06. Compensation and Indemnification of Trustee and Its Prior Claim...................................32
Section 5.07. Right of Trustee to Rely on Officers' Certificate, etc............................................33
Section 5.08. Persons Eligible for Appointment as Trustee.......................................................33
Section 5.09. Resignation and Removal; Appointment of Successor Trustee.........................................33
Section 5.10. Acceptance of Appointment by Successor............................................................35
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee............................35
Section 5.12. Reports to the Trustee............................................................................36
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders.......................................................36
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date.......................36
Section 6.03. Holders to be Treated as Owners...................................................................37
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding.................................................37
Section 6.05. Right of Revocation of Action Taken...............................................................38
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures Without Consent of Securityholders........................................38
Section 7.02. Supplemental Indentures With Consent of Securityholders...........................................39
Section 7.03. Effect of Supplemental Indenture..................................................................41
Section 7.04. Documents to Be Given to Trustee..................................................................41
Section 7.05. Notation on Securities in Respect of Supplemental Indentures......................................41
-ii-
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May Consolidate, etc., on Certain Terms...................................................41
Section 8.02. Successor Corporation Substituted................................................................42
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01. Defeasance Within One Year of Payment............................................................42
Section 9.02. Defeasance.......................................................................................43
Section 9.03. Covenant Defeasance..............................................................................44
Section 9.04. Application of Trust Money.......................................................................45
Section 9.05. Repayment to Issuer..............................................................................45
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders, Officers and Directors Exempt from Individual Liability.............46
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders......................46
Section 10.03. Successors and Assigns of Issuer Bound by Indenture..............................................46
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders.......................................46
Section 10.05. Officers' Certificates and Opinions of Counsel; Statements to be Contained Therein...............47
Section 10.06. Payments Due on Saturdays, Sundays and Holidays..................................................48
Section 10.07. Conflict of Any Provision of Indenture with Trust Indenture Act of 1939..........................48
Section 10.08. New York Law to Govern...........................................................................48
Section 10.09. Counterparts.....................................................................................48
Section 10.10. Effect of Headings...............................................................................48
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article.........................................................................48
Section 11.02. Notice of Redemption; Partial Redemptions........................................................48
Section 11.03. Payment of Securities Called for Redemption......................................................50
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption....................50
Section 11.05. Mandatory and Optional Sinking Funds.............................................................50
ARTICLE 12
GUARANTEES
Section 12.01. The Cable Guarantees.............................................................................52
Section 12.02. Guarantee Unconditional..........................................................................53
Section 12.03. Discharge; Reinstatement.........................................................................53
-iii-
Section 12.04. Waiver by the Cable Guarantors...................................................................53
Section 12.05. Subrogation and Contribution.....................................................................54
Section 12.06. Stay of Acceleration.............................................................................54
Section 12.07. Limitation on Amount of Cable Guarantee..........................................................54
Section 12.08. Execution and Delivery of Cable Guarantee........................................................54
Section 12.09. Release of Cable Guarantee.......................................................................54
-iv-
THIS INDENTURE, dated as of September [ ], 2002, among AT&T BROADBAND
CORP., a Delaware corporation (the "Issuer"), the Cable Guarantors party hereto
and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, the Cable Guarantors party hereto have duly authorized the
execution and delivery of the Indenture as guarantors of the Securities, and
each Cable Guarantor has done all things necessary to make the Cable Guarantees,
when the Securities are executed by the Issuer and authenticated and delivered
by the Trustee and duly issued by the Issuer, the valid obligations of such
Cable Guarantor as hereinafter provided.
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer, the Cable Guarantors and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities as follows:
Article 1
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, as amended, including terms defined therein by
reference to the Securities Act of 1933, as amended, (except as herein otherwise
expressly provided or unless the context otherwise clearly requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with GAAP. 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. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authorized Newspaper" means a newspaper in the English language or in
an official language of the country of publication, customarily printed on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. If, because of temporary suspension of
publication or general circulation of any newspaper or for any other reason, it
is impossible or impracticable to make any publication of any notice required by
this Indenture in the manner herein provided, such publication or other notice
in lieu thereof which is made at the written direction of the Issuer by the
Trustee shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in all of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Cable Guarantee" means the guarantee of the Securities by a Cable
Guarantor pursuant to this Indenture.
"Cable Guarantor" means each of AT&T Comcast Corporation, Comcast Cable
Communications, Inc., MediaOne Group, Inc. and AT&T Broadband, LLC, in each case
excluding such entities' Subsidiaries and unless and until such Cable Guarantor
is released from its Cable Guarantee pursuant to this Indenture.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal, or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person; and
"Capitalized Lease Obligation" is defined to mean the rental obligations, as
aforesaid, under such lease.
"Capital Stock" means, with respect to any Person, including the
Issuer, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of such Person's capital
stock or other ownership interests, whether now outstanding or issued after the
date of this Indenture, including, without limitation, all Common Stock and
Preferred Stock.
"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 and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
2
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, Floor 8W, New York, NY 10286,
Attention: Corporate Trust Administration.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, or other similar agreement or arrangement designed to protect against
the fluctuation in currency values.
"Default" means any Event of Default as defined in Section 4.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Event of Default" means any event or condition specified as such in
Section 4.01.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of determination, including,
without limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
contained in this Indenture shall be computed in conformity with GAAP applied on
a consistent basis.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities, or services, to take-or-pay, or to maintain
financial statement conditions or otherwise); or
(b) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
Provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
3
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person evidenced by bonds, debentures,
notes, or other similar instruments, in each case, for value received or
settlement of claims;
(c) all obligations of such Person in respect of letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business);
(e) all obligations of such Person as lessee under Capitalized Leases;
(f) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided that the amount of such Indebtedness shall be the lesser of:
(i) the fair market value of such asset at such date of
determination; and
(ii) the amount of such Indebtedness;
(g) all Indebtedness of other Persons to the extent Guaranteed by such
Person; and
(h) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
Notwithstanding the foregoing, in no event shall the term
"Indebtedness" be deemed to include letters of credit or bonds that secure
performance or surety bonds or similar instruments that are issued in the
ordinary course of business.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation; provided:
(a) that the amount outstanding at any time of any Indebtedness issued
with original issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP; and
4
(b) that Indebtedness shall not include any liability for federal, state,
local, or other taxes.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Rate Agreements" means any obligations of any Person pursuant to
any interest rate swaps, caps, collars, and similar arrangements providing
protection against fluctuations in interest rates. For purposes of the
Indenture, the amount of such obligations shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such obligation had terminated at the
end of such fiscal quarter, and in making such determination, if any agreement
relating to such obligation provides for the netting of amounts payable by and
to such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount of
such obligations shall be the net amount so determined, plus any premium due
upon default by such Person.
"Issuer" means (except as otherwise provided in Article 5) AT&T Broadband
Corp., a Delaware corporation, and, subject to Article 8, its successors and
assigns.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Indenture, the
Issuer or any Cable Guarantor shall be deemed to own subject to a Lien any asset
that it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Obligor" means each of the Issuer and each Cable Guarantor, in each case
excluding such entities' Subsidiaries (other than the Issuer Cable Guarantors).
"Officers' Certificate" means a certificate signed by the chairman of the
Board of Directors or the president or any vice president and by the treasurer
or the secretary or any assistant secretary of the Issuer and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
5
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.01.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.01.
"Permitted Liens" means (a) any Lien on any asset incurred prior to the
date of this Indenture; (b) any Lien on any assets acquired after the date of
this Indenture (including by way of merger or consolidation) by the Issuer or
any Cable Guarantor, which Lien is created, incurred or assumed
contemporaneously with such acquisition, or within 270 days thereafter, to
secure or provide for the payment or financing of any part of the purchase price
thereof, or any Lien upon any assets acquired after the date of this Indenture
existing at the time of such acquisition (whether or not assumed by the Issuer
or any Cable Guarantor), provided that any such Lien shall attach only to the
assets so acquired; (c) any Lien on any assets in favor of the Issuer or any
Cable Guarantor; (d) any Lien on assets incurred in connection with the issuance
of tax-exempt governmental obligations (including, without limitation,
industrial revenue bonds and similar financing); (e) any Lien granted by any
Cable Guarantor on assets to the extent limitations on the incurrence of such
Liens are prohibited by any agreement to which such Cable Guarantor is subject
as of the date of this Indenture; and (f) any renewal of or substitution for any
Lien permitted by any of the preceding clauses, including any Lien securing
reborrowing of amounts previously secured within 270 days of the repayment
thereof, provided that no such renewal or
6
substitution shall extend to any assets other than the assets covered by the
Lien being renewed or substituted.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof or any
other entity.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"Registered Global Security" means a Security evidencing all or a part of
a series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.04, and bearing the legend prescribed in Section 2.04.
"Registered Security" means any Security registered on the register
maintained by the Issuer pursuant to Section 2.08.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to the Issuer or a Cable Guarantor of any property, whether owned by the
Issuer or such Cable Guarantor at the date of the original issuance of any
series of Securities or later acquired, which has been or is to be sold or
transferred by the Issuer or such Cable Guarantor to such Person or to any other
Person by whom funds have been or are to be advanced on the security of such
property. Notwithstanding the foregoing no arrangement shall be deemed a "Sale
and Leaseback Transaction" if (a) the lease is for a period of not in excess of
three years, including renewal of rights; (b) the lease secures or relates to
industrial revenue or similar financing; (c) the transaction is solely between
the Issuer and a Cable Guarantor or between or among Cable Guarantors; or (d)
the Issuer or such Cable Guarantor, within 270 days after the sale is completed,
applies an amount equal to or greater than (i) the net proceeds of the sale of
the assets or part thereof leased or (ii) the fair market value of the assets or
part thereof leased (as determined in good faith by Board of Directors) either
to (A) the retirement (or open market purchase) of Securities, other long-term
Indebtedness of the Issuer ranking on a parity with or senior to each series of
Securities or long-term Indebtedness of a Cable Guarantor; or (B) the purchase
by the Issuer or any Cable
7
Guarantor of other property, plant or equipment related to the business of the
Issuer or any Cable Guarantor having a value at least equal to the value of the
assets or part thereof leased.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of all votes
represented by all classes of outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article 5, shall also include any
successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"UCC" means the Uniform Commercial Code, as in effect in each applicable
jurisdiction.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency of instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a 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 interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Wholly-Owned" is defined to mean, with respect to any Subsidiary of any
person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
8
"Yield to Maturity" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. The Issuer
shall furnish any such legends to the Trustee in writing.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 2.02. Form of Trustee's Certification of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:_________________________________
Authorized Signatory
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
9
(b) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
2.08, 2.09, or 2.11);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the date
or dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and the record dates for the determination
of Holders to whom interest is payable;
(e) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02);
(f) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Issuer, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.01 or
provable in bankruptcy pursuant to Section 4.02;
(j) if the Securities of the series are issuable in whole or in part as
one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(k) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture); and
(l) any trustees, authenticating or paying agents, transfer agents or
registrar or any other agents with respect to the Securities of such series.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental
hereto.
Section 2.04. Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any
10
series executed by the Issuer to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver such Securities to or upon the written
order of the Issuer, such order to be signed by both (a) the chairman of its
Board of Directors, or any vice chairman of its Board of Directors, or its
president or any vice president and (b) by its treasurer or any assistant
treasurer, without any further action by the Issuer. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities the Trustee shall receive, and (subject to Section
5.01) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or resolutions
delivered under clause Section 2.04(b) below;
(b) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or an assistant
secretary of the Issuer;
(c) an executed supplemental indenture, if any, and the documentation
required to be delivered pursuant to Section 7.04;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.01 and 2.03, respectively and
prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance with Section 10.05, to
the effect
(i) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors or by
a supplemental indenture as permitted by Section 2.01 and 2.03 in
conformity with the provisions of this Indenture;
(ii) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer
in accordance with their terms;
(iii) that all laws and requirements in respect of the execution and
delivery by the Issuer of the Securities have been complied with; and
(iv) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability.
If the Issuer shall establish pursuant to Section 2.03 that the Securities
of a series or a portion thereof are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute (in accordance with
Section 2.05) and the Trustee shall authenticate and make available for delivery
one or more Registered Global Securities that (i) shall represent and
11
shall be denominated in an amount equal to the aggregate principal amount of all
of the Securities of such series issued in such form and not yet canceled, (ii)
shall be registered in the name of the Depositary for such Registered Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or its custodian or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
Section 2.05. Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of its Board of Directors or any vice
chairman of its Board of Directors or its president or any vice president or its
treasurer or any assistant treasurer, under its corporate seal and attested by
its secretary or any assistant secretary. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
Section 2.07. Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.03. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine as evidenced by the execution and
authentication thereof.
12
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
Section 2.08. Registration, Transfer and Exchange. The Issuer will keep
or cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.02 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon
13
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
Notwithstanding any other provision of this Section 2.08, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any
series notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Issuer shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such ineligibility, the Issuer will
execute, and the Trustee, upon receipt of the Issuer's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Issuer may at any time and in its sole discretion determine that any
Registered Global Securities of any series shall no longer be maintained in
global form. In such event, or in the event that there shall have occurred and
be continuing an Event of Default with respect to a series of Securities, the
Issuer will, upon the request of any Holder, execute, and the Trustee, upon
receipt of the Issuer's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
14
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Issuer agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.04 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Issuer pursuant to Section 2.03 with respect to any
Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part
for Registered Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Issuer and such Depositary.
Thereupon, the Issuer shall execute, and the Trustee shall authenticate and make
available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, 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 Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global Security
pursuant to this Section 2.08 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer 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.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any Securities
to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse Federal income tax
consequences to the Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be entitled
to rely on an Officers' Certificate or an Opinion of Counsel in determining such
result.
Neither the Registrar nor the Issuer shall be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series for
a period of 15 days before the mailing of a notice of redemption of such
Securities to be redeemed or (ii) to register the transfer of or exchange any
Security selected for redemption in whole or in part.
15
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
and shall be surrendered to the Trustee, the Issuer shall execute, and the
Trustee shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security. If the Holder of any Security claims that
the Security has been lost, destroyed or wrongfully taken, the Issuer shall
execute, and the Trustee shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the lost, destroyed or wrongfully taken Security, if the
applicant so requests before the Issuer has notice that the Security has been
acquired by a protected purchaser, and the applicant furnishes to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and the applicant satisfies other reasonable requirements imposed
by the Issuer.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee and its counsel) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or wrongful taking, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the
Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
wrongful taking of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or wrongfully taken Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or wrongfully taken Securities and shall
preclude any and all other rights or remedies.
Section 2.10. Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of canceled Securities held by it in
accordance with the record retention policies of the Trustee in effect from time
to time and, if such canceled certificates are destroyed, shall deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall
16
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
Section 2.12. Computation of Interest. Except as otherwise specified in
the Securities of a series, interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 2.13. CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
COVENANTS OF THE ISSUER, THE CABLE GUARANTORS AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
17
Notwithstanding any provisions of this Indenture and the Securities of any
series to the contrary, if the Issuer and a Holder of any Registered Security so
agree or if expressly provided pursuant to Section 2.03, payments of interest
on, and any portion of the Principal of, such Holder's Registered Security
(other than interest payable at maturity or on any redemption or repayment date
or the final payment of Principal on such Security) shall be made by the paying
agent, upon receipt from the Issuer of immediately available funds by 11:00
a.m., New York City time (or such other time as may be agreed to between the
Issuer and the paying agent) or the Issuer, directly to the Holder of such
Security (by wire transfer of Federal funds or immediately available funds or
otherwise) if the Holder has delivered written instructions to the Trustee 15
days prior to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and, in the
case of payments of Principal, surrenders the same to the Trustee in exchange
for a Security or Securities aggregating the same principal amount as the
unredeemed principal amount of the Securities surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the Holder pursuant to
this Section 3.01 unless a new instruction is delivered 15 days prior to a
payment date. The Issuer will indemnify and hold each of the Trustee and any
paying agent harmless against any loss, liability or expense (including
attorneys' fees and expenses) resulting from any act or omission to act on the
part of the Issuer or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
Section 3.02. Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in the Borough of Manhattan, The
City of New York an office or agency (a) where the Securities may be presented
for payment, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided and (c) where notices
and demands to or upon the Issuer in respect of the Securities or of this
Indenture may be served. The Issuer will give to the Trustee written notice of
the location of any such office or agency and of any change of location thereof.
Unless otherwise specified in accordance with Section 2.03, the Issuer hereby
initially designates the Corporate Trust Office of Trustee as the office to be
maintained by it for each such purpose. In case the Issuer shall fail to so
designate or maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office.
Section 3.03. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the holders of the
Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such series) to make any payment of
the principal of or interest on the Securities of such series when the same
shall be due and payable, and
18
(c) that it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in clause 3.03(b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more paying agents for any series of
Securities, it will, on or before each due date of the principal of or interest
on any Securities of such series, deposit with the paying agent or agents for
the Securities of such series a sum, by 10:00 a.m. New York City time in
immediately available funds on the payment date, sufficient to pay the principal
or interest so becoming due with respect to the Securities of such series, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee in writing of any failure so to act.
Anything in this section to the contrary notwithstanding, the Issuer may
at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this section is subject to the provisions of
Section 9.05.
Section 3.04. Certificate of the Issuer. Within 120 days after the close
of the fiscal year ended December 31, 2002, and within 120 days after the close
of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief
certificate (which need not comply with Section 10.05) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under the
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture).
At the time such certificate is filed, the Issuer will also file with the
Trustee a letter or statement of the independent accountants who shall have
certified the financial statements of the Issuer for its preceding fiscal year
to the effect that, in making the examination necessary for certification of
such financial statements, they have obtained no knowledge of any default by the
Issuer in the performance or fulfillment of any covenant, agreement or condition
contained in this Indenture, which default remains uncured at the date of such
letter or statement, or, if they shall have obtained knowledge of any such
uncured default, specifying in such letter or statement
19
such default or defaults and the nature and status thereof, it being understood
that such accountants shall not be liable directly or indirectly for failure to
obtain knowledge of any such default or defaults, and that nothing contained in
this Section 3.04 shall be construed to require such accountants to make any
investigation beyond the scope required in connection with such examination.
Section 3.05. Securityholders Lists. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for
non-interest bearing Securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 10 days prior to the time such
information is furnished.
Section 3.06. Reports by the Issuer. The Issuer covenants to:
(a) file, whether or not required to do so under applicable law, with the
Trustee, within 15 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports which the Issuer 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 Issuer is not required to file with the Commission, annual reports,
information, documents and other reports pursuant to either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, then the Issuer will file
with the Trustee and will file with the Commission, in accordance with rules and
regulations prescribed by the Commission, such of the supplementary and periodic
information, documents and reports 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 in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Securities and Exchange
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants provided for in this
Indenture as may be required by such rules and regulations;
(c) transmit to the Securityholders, in the manner and to the extent
provided in Section 10.04, such summaries of any information, documents and
reports required to be filed with the Trustee pursuant to the provisions of
subdivisions (a) and (b) of this Section 3.06 as may be required by the rules
and regulations of the Commission.
Notwithstanding the foregoing, if AT&T Comcast Corporation is required to
file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that includes combined or consolidating financial information of the Issuer
pursuant to Rule 3-10 of Regulation S-X, this covenant shall be deemed satisfied
by AT&T Comcast Corporation filing with the Trustee, within 15 days after AT&T
Comcast Corporation is required to file the same under the Securities
20
Exchange Act of 1934, copies of AT&T Comcast Corporation annual reports and the
information, documents and other reports to be filed by it pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 3.07. Corporate Existence. So long as any of the Securities remain
unpaid, the Issuer will at all times (except as otherwise provided or permitted
elsewhere in this Indenture) do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 3.08. Restrictions on Mergers, Sales and Consolidations. So long
as any of the Securities remain unpaid, the Issuer will not consolidate or merge
with or sell, convey or lease all or substantially all of its property to any
other corporation except as permitted in Article 8 hereof.
Section 3.09. Further Assurances. From time to time whenever requested by
the Trustee, the Issuer will execute and deliver such further instruments and
assurances and do such further acts as may be reasonably necessary or proper to
carry out more effectually the purposes of this Indenture or to secure the
rights and remedies hereunder of the holders of the Securities of any series.
Section 3.10. Limitation on Liens.
Neither the Issuer nor any Cable Guarantor shall create, incur or assume
any Lien (other than any Permitted Lien) on such Person's assets, including the
Capital Stock of its Wholly-Owned Subsidiaries, to secure the payment of
Indebtedness of the Issuer or any Cable Guarantor, unless the Issuer secures the
Outstanding Securities equally and ratably with (or prior to) all Indebtedness
secured by such Lien, so long as such Indebtedness shall be so secured.
Section 3.11. Limitation on Sale and Leaseback Transactions.
Neither the Issuer nor any Cable Guarantor shall enter into any Sale and
Leaseback Transaction involving any of such Person's assets, including the
Capital Stock of its Wholly-Owned Subsidiaries.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for
21
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default by any Obligor in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default by an Obligor in the payment of all or any part of the
principal on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default by an Obligor in the performance, or breach by any Obligor, of
any of its covenants or agreements in respect of the Securities of such series
(other than a covenant or agreement in respect of the Securities of such series
a default in whose performance or whose breach is elsewhere in this section
specifically dealt with), and continuance of such default or breach for a period
of 30 consecutive days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of all
series affected thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of any Obligor in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of any Obligor or for any substantial part of
such party's property and assets or ordering the winding up or liquidation of
any Obligor's affairs, and such decree or order shall remain unstayed and in
effect for a period of 180 consecutive days; or
(e) any Obligor shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of such party or for any substantial part of such party's property, or make any
general assignment for the benefit of creditors; or
(f) any Cable Guarantee shall not be (or claimed by any Cable Guarantor
not to be) in full force and effect; or
(g) any other Event of Default provided in the supplemental indenture or
resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c),
4.01(f) or 4.01(g) occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Securities of any affected
22
series then Outstanding hereunder (each such series voting as a separate class)
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clauses 4.01(d)
or 4.01(e) occurs and is continuing, then the principal amount of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series that
have been accelerated, each such series voting as a separate class, by written
notice to the Issuer and to the Trustee, may waive all defaults with respect to
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
23
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents and counsel,
and any expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the registered holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any 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 pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be necessary or
24
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property
of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
25
Section 4.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.06;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal and interest or yield
to maturity, without preference or priority of principal over interest or
yield to maturity, or of interest or yield to maturity over principal, or
of any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid interest
or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
Section 4.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may proceed to
protect and enforce the rights vested in it by this Indenture, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
26
exercise of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer, any Cable Guarantors and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, any Cable Guarantors, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
Section 4.06. Limitations on Suits by Securityholder. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its
own name as trustee hereunder and shall have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 4.09; it being
understood and intended, and being expressly covenanted by the Holder of every
Security with every other Holder and the Trustee, that no one or more Holders of
Securities of any series shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of the
applicable series. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of, premium, if any, or interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 4.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders 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
27
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.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.06, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time outstanding 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 with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction.
Nothing in this Indenture shall impair the right of the Trustee to take
any action which is not inconsistent with such direction or directions by
Securityholders.
Section 4.10. Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive an existing default or Event of Default, except a default in the
payment of Principal of or interest on any Security as specified in clauses (a)
or (b) of Section 4.01 or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.02. In the case of any such waiver, the Issuer, the
Trustee and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
28
Section 4.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to Responsible Officers of the Trustee
which have occurred with respect to such series, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, 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 or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, to any suit
instituted by a Holder pursuant to Section 4.07.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(a) Prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
29
(1) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) this subsection (b) shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the holders relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein expressly provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
30
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject
to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in connection with such request, order or direction;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require indemnity satisfactory to
it against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand;
(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
31
(h) the Trustee shall not be liable for any action taken, suffered or
omitted in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
and
(k) the Trustee may request that the Issuer deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, the Securities or the Cable
Guarantees. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
Section 5.05. Moneys Held by Trustee. All moneys received by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 5.06. Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing from time to time by the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this
32
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except to the extent any such expense, disbursement or advance
may arise from its negligence or bad faith. The Issuer also covenants and agrees
to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and the performance of its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability (whether
asserted by the Issuer, a Cable Guarantor, a Holder or any other Person) in the
premises, except to the extent such loss, liability or expense is due to the
negligence or bad faith of the Trustee or such predecessor Trustee. The
obligations of the Issuer under this section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the resignation or removal of the Trustee.
Such additional indebtedness shall be a senior claim and lien to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim. The
parties agree that if the Trustee renders services following an Event of Default
under Section 4.01(d) or (e), compensation for such services is intended to
constitute administrative expense under any bankruptcy law.
Section 5.07. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939 and which has, or is a Wholly-Owned Subsidiary,
directly or indirectly of a bank holding company which has, a combined capital
and surplus of $50,000,000. If such corporation or holding company publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, State or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation or holding company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the
33
resigning Trustee and one copy to the successor trustee or trustees. If no
successor Trustee shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition, at the expense of the Issuer,
any court of competent jurisdiction for the appointment of a successor Trustee,
or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator 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 such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series 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 with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided in Section 6.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of
34
this Section 5.09 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment by Successor. Any successor
Trustee appointed as provided in Section 5.09 shall execute and deliver to the
Issuer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
with respect to all or any applicable series shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor Trustee, upon payment of its charges then unpaid,
the Trustee ceasing to act shall, subject to Section 5.06, pay over to the
successor Trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor Trustee all such
rights, powers, duties and obligations. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor Trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor Trustee is
acting as Trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be eligible under the provisions of Section 5.08, without
the execution or filing
35
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 5.12. Reports to the Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15 following
the date of the initial issuance of Securities under this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Issuer. The Issuer
will promptly notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders 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. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved by the
certificate of any notary public or other officer authorized to take
acknowledgment of deeds, that the Person executing such instrument
36
acknowledged to such notary public or other such officer the execution thereof,
or by an affidavit of a witness to such execution sworn to before any such
notary public or other officer. Where such execution is by an officer of a
corporation or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or by any other
Person acting in a representative capacity, such certificate or affidavit shall
also constitute sufficient proof of such Person's authority. The holding of
Securities shall be proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes of determining
the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.01, which record date may be set at any
time or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
Section 6.03. Holders to be Treated as Owners. Prior to due presentment
of a Security for registration of transfer, the Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities as to which the Trustee has received written notice are 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 Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be entitled to accept
37
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
Section 6.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors certified
to the Trustee, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article 8;
(b) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely affect
the interests of the Holders of the Securities in any material respect;
(c) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(d) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to the requirements of Section 5.10;
38
(e) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act of 1939;
(f) to provide for uncertificated or Unregistered Securities and to make
all appropriate changes for such purpose;
(g) to make any change that does not adversely affect the rights of any
Holder;
(h) as provided by or pursuant to a Board Resolution or indenture
supplemental hereto establishing the terms of one or more series of Securities;
(i) to add to the covenants of the Issuer such new covenants,
restrictions, conditions or provisions as its Board of Directors shall consider
to be for the protection of the Holders of Securities, and with respect to which
the Trustee has received an Opinion of Counsel to a similar effect, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default; provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to
the Trustee upon such an Event of Default or may limit the right of the Holders
of a majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default; or
(j) to make any change so long as no Securities are Outstanding.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee 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.
Any supplemental indenture authorized by the provisions of this section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 6) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or 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 any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected
thereby:
39
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security;
(ii) reduce the Principal thereof or the rate of interest thereon,
or any premium payable with respect thereto;
(iii) change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable;
(iv) change the provisions for calculating the optional redemption
price, including the definitions relating thereto;
(v) make any change to Section 4.07 or 4.10 (except to include other
provisions subject to Section 4.10);
(vi) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with any
provisions of this Indenture or any defaults and their consequences
provided for in this Indenture;
(vii) waive a default in the payment of Principal of or interest on
any Security of such Holder (except pursuant to a rescission of
acceleration pursuant to Section 4.01);
(viii) adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption or
repurchase at the option of such Holder;
(ix) modify any of the provisions of this Section 7.02, 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; or
(x) change or waive any provision that, pursuant to a board
resolution or indenture supplemental hereto establishing the terms of one
or more series of Securities, is prohibited to be so changed or waived.
Upon the written request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.01, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
40
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 7.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 7 complies with the applicable provisions of
this Indenture.
Section 7.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other Person or sell,
transfer, lease or otherwise dispose of convey all or substantially all of its
property and assets to any Person (other than a consolidation with or merger
with or into or a sale, conveyance, transfer, lease or other disposition to a
Wholly-Owned Subsidiary with a positive net worth; provided that, in connection
with any such merger of the Issuer with a Wholly-Owned Subsidiary, no
consideration (other than common stock) in the surviving person or the Issuer
shall be issued or distributed to the stockholders of the Issuer), unless (i)
either (x) the Issuer shall be the continuing corporation, or the successor
corporation or (y) the Person formed by such consolidation or into which the
Issuer is merged or that acquires by sale or conveyance substantially all the
assets of the Issuer (if other than the Issuer) shall be a corporation or
limited liability company organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume
the due and punctual payment of the principal of and interest
41
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Issuer, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
Person, (ii) immediately after giving effect to such transaction, no default or
Event of Default shall have occurred and be continuing and (iii) the Issuer
delivers to the Trustee an Officers' Certificate and Opinion of Counsel, in each
case stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Section 8.01 and that all conditions precedent
provided for herein relating to such transaction have been complied with;
provided, however, that the foregoing limitations shall not apply if, in the
good faith determination of the Board of Directors, whose determination shall be
evidenced by a board resolution certified to the Trustee, the principal purpose
of such transaction is to change the state of incorporation of the Issuer; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
Section 8.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer, lease or other disposition,
and following such an assumption by the successor Person, such successor Person
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein. Such successor Person may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and, upon
the order of such successor Person instead of the Issuer and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee,
pursuant to the terms hereof, shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
Upon the assumption by the successor Person in the manner described in
this Article, the Issuer shall be discharged from all obligations and covenants
under this Indenture and the Securities.
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01. Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 9.01, the Issuer may terminate its obligations and the
obligations of the Cable Guarantors under the Securities of any series, the
Cable Guarantees with respect to Securities of such series and this Indenture
with respect to Securities of such series if:
42
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 3.01 or Securities of such series for
whose payment money or securities have theretofore been held in trust
and thereafter repaid to the Issuer, as provided in Section 9.05) have
been delivered to the Trustee for cancellation and the Issuer has paid
all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Issuer irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment
and after payment of all Federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to
pay Principal of and interest on the Securities of such series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, and (C) the Issuer delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Issuer's obligations
under Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Issuer's
obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Issuer's obligations in
Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities of such
series and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
Section 9.02. Defeasance. Except as provided below, the Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture and
the Cable Guarantees will no longer be in effect with respect to the Securities
of such series (and the Trustee, at the expense of the Issuer, shall execute
instruments in form and substance satisfactory to the Issuer and the Trustee
acknowledging the same); provided that the following conditions shall have been
satisfied:
(i) the Issuer has irrevocably deposited in trust with the
Trustee as trust funds specifically pledged as security for, and
dedicated solely to, Holders of the Securities of such series, for
payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all
federal,
43
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of
and accrued interest on the outstanding Securities of such series to
maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture, the Cable Guarantees or
any other material agreement or instrument to which the Issuer is a
party or by which it is bound;
(iii) no default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv) the Issuer shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Issuer's exercise of its option under this Section
9.02 and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under
the UCC; and
(v) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 9.02 of the Securities of such series have
been complied with.
The Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06,
5.09 and 9.05 with respect to the Securities of such series shall survive until
such Securities are no longer outstanding. Thereafter, only the Issuer's
obligations in Sections 5.06 and 9.05 shall survive.
Section 9.03. Covenant Defeasance. The Issuer may omit to comply with
any term, provision or condition set forth in Sections 3.04, 3.08, 3.10 or 3.11
(or any other specific covenant relating to the Securities of any series
provided for in a Board Resolution or supplemental indenture pursuant to Section
2.03 which may by its terms be defeased pursuant to this Section 9.03), and such
omission shall be deemed not to be an Event of Default under clause (c) of
Section 4.01, with respect to the outstanding Securities of such series if:
(i) the Issuer has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all Federal,
state and local taxes or other charges and assessments in respect
thereof payable by the
44
Trustee, to pay and discharge the Principal of and interest on the
outstanding Securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture, the Cable Guarantees or
any other material agreement or instrument to which the Issuer is a
party or by which it is bound;
(iii) no default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv) the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no
prior liens under the UCC and (B) such Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred; and
(v) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 9.03 of the Securities of such
series have been complied with.
Section 9.04. Application of Trust Money. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02, or 9.03, as the case may be,
in respect of the Securities of any series and shall apply the deposited money
and the proceeds from deposited U.S. Government Obligations in accordance with
the Securities of such series and this Indenture to the payment of Principal of
and interest on the Securities of such series; but such money need not be
segregated from other funds except to the extent required by law. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 9.01, 9.02, or 9.03, as the case may be, or the principal and interest
received in respect thereof, other than any such tax, fee or other charge that
by law is for the account of the Holders.
Section 9.05. Repayment to Issuer. Subject to Sections 5.06, 9.01,
9.02 and 9.03, the Trustee and the Paying Agent shall promptly pay to the Issuer
upon request set forth in an Officers' Certificate any money held by them at any
time and not required to make payments hereunder and thereupon shall be relieved
from all liability with respect to such money. Subject to applicable escheat or
abandoned property laws, the Trustee and the Paying Agent shall pay to the
Issuer upon written request any money held by them and required to make payments
hereunder under this Indenture that remains unclaimed for two years; provided
that the Trustee or such Paying Agent before being required to make any payment
shall cause to be published at the expense of the Issuer once in an Authorized
Newspaper or mail to each Holder entitled to such money at such Holder's address
(as set forth in the register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date of
45
such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Issuer. After payment to the Issuer, Holders entitled to
such money must look to the Issuer for payment as unsecured general creditors
unless an abandoned property law designates another Person, and all liability of
the Trustee and such Paying Agent with respect to such money shall cease.
Article 10
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders, Officers and Directors
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, the Cable Guarantees or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer, director or employee, as such, of the Issuer, any Cable
Guarantor or of any successor Person thereof, either directly or through the
Issuer or any Cable Guarantor or any successor Person thereof, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the holders
thereof and as part of the consideration for the issue of the Securities.
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
Section 10.03. Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 10.04. Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to AT&T Broadband Corp. at 1500 Market Street, Philadelphia,
Pennsylvania 19102-2148, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor
46
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 10.05. Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such
47
officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Section 10.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
Section 10.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
Section 10.08. New York Law to Govern. This Indenture, including any
Cable Guarantee, and each Security shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of such State.
Section 10.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 10.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Article 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have
48
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the CUSIP
numbers of such Securities to be redeemed, the principal amount of each Security
of such series held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed, the
method the Trustee shall use to determine such Securities to be redeemed as
specified in the last paragraph of this Section 11.02, if applicable, and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
written request, by the Trustee in the name and at the expense of the Issuer.
By 10:00 a.m. (New York City time) on the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.03) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
(unless a shorter period shall be satisfactory to the Trustee) prior to the date
fixed for redemption an Officers' Certificate stating the aggregate principal
amount of Securities to be redeemed.
In the case of the redemption of all of the Securities of a series
outstanding, the Issuer shall notify the Trustee in writing of the redemption
date 45 days (unless a shorter period shall be satisfactory to the Trustee)
prior to the redemption date.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities of a series may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series 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 the redemption of Securities of
any series 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.
49
Section 11.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented pursuant to
Sections 2.04, 2.05 and 2.06.
Section 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
Section 11.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to
50
the mandatory sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If any sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer shall so request in writing) with respect
to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. If such amount shall be $50,000 or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 is available together with accrued interest to the date fixed
for redemption. The Trustee shall select, in the manner provided in Section
11.02, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Issuer or an
entity directly
51
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Issuer or the Trustee, in the name
and at the expense of the Issuer (if the Issuer shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in the manner provided in Section 11.02 (and with the effect provided in
Section 11.03) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default if
the Trustee has received written notice thereof at least three Business Days
prior to any payment hereunder except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, if the Trustee has received written notice of such default or Event
of Default at least three Business Days prior to any payment hereunder, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article 4 and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this section to the redemption of such Securities.
Article 12
GUARANTEES
Section 12.01. The Cable Guarantees. Subject to the provisions of this
Article, each Cable Guarantor hereby irrevocably, fully and unconditionally
guarantees, jointly and severally, on an unsecured basis, the full and punctual
payment (whether at maturity, upon redemption, or otherwise) of the Principal of
and interest on, and all other amounts payable under, each Security, and the
full and punctual payment of all other amounts payable by the Issuer under the
52
Indenture. Upon failure by the Issuer to pay punctually any such amount, each
Cable Guarantor shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in the Indenture.
Section 12.02. Guarantee Unconditional. The obligations of each Cable
Guarantor hereunder are unconditional and absolute and, without limiting the
generality of the foregoing, will not be released, discharged or otherwise
affected by
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Issuer under the Indenture or any Security,
by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Indenture or
any Security;
(c) any change in the corporate existence, structure or ownership of
the Issuer, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Issuer or its assets or any resulting release or
discharge of any obligation of the Issuer contained in the Indenture or any
Security;
(d) the existence of any claim, set-off or other rights which any Cable
Guarantor may have at any time against the Issuer, the Trustee, any other Cable
Guarantor or any other Person, whether in connection with the Indenture or an
unrelated transactions, provided that nothing herein prevents the assertion of
any such claim by separate suit or compulsory counterclaim;
(e) any invalidity, irregularity or unenforceability relating to or
against the Issuer for any reason of the Indenture or any Security, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Issuer of the principal of or interest on any Security or any other amount
payable by the Issuer under the Indenture; or
(f) any other act or omission to act or delay of any kind by the
Issuer, the Trustee or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of or defense to such Cable Guarantor's obligations
hereunder.
Section 12.03. Discharge; Reinstatement. Each Cable Guarantor's
obligations hereunder will remain in full force and effect until the Principal
of and interest on the Securities of each series and all other amounts payable
by the Issuer under the Indenture have been paid in full. If at any time any
payment of the Principal of or interest on any Security or any other amount
payable by the Issuer under the Indenture is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Issuer or otherwise, each Cable Guarantor's obligations hereunder with respect
to such payment will be reinstated as though such payment had been due but not
made at such time.
Section 12.04. Waiver by the Cable Guarantors. Each Cable Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Company or any other Person.
53
Section 12.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Issuer under this Article, the Cable
Guarantor making such payment will be subrogated to the rights of the payee
against the Issuer with respect to such obligation, provided that the Cable
Guarantor may not enforce either any right of subrogation, or any right to
receive payment in the nature of contribution, or otherwise, from any other
Cable Guarantor, with respect to such payment so long as any amount payable by
the Issuer hereunder or under the Securities remains unpaid.
Section 12.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Issuer under the Indenture or the
Securities is stayed upon the insolvency, bankruptcy or reorganization of the
Issuer, all such amounts otherwise subject to acceleration under the terms of
the Indenture are nonetheless payable by the Cable Guarantors hereunder
forthwith on demand by the Trustee or the Holders.
Section 12.07. Limitation on Amount of Cable Guarantee. Notwithstanding
anything to the contrary in this Article, each Cable Guarantor, and by its
acceptance of Securities, each Holder, hereby confirms that it is the intention
of all such parties that the Cable Guarantee of such Cable Guarantor not
constitute a fraudulent conveyance under applicable fraudulent conveyance
provisions of the United States Bankruptcy Code or any comparable provision of
other U.S. and non-U.S. law. To effectuate that intention, the Trustee, the
Holders and the Cable Guarantors hereby irrevocably agree that the obligations
of each Cable Guarantor under its Cable Guarantee are limited to the maximum
amount that would not render the Cable Guarantor's obligations subject to
avoidance under applicable fraudulent conveyance provisions of the United States
Bankruptcy Code or any comparable provision of other U.S. and non-U.S. law.
Section 12.08. Execution and Delivery of Cable Guarantee. The execution
by each Cable Guarantor of the Indenture evidences the Cable Guarantee of such
Cable Guarantor, whether or not the person signing as an officer of the Cable
Guarantor still holds that office at the time of authentication of any Security.
The delivery of any Security by the Trustee after authentication constitutes due
delivery of the Cable Guarantee set forth in the Indenture on behalf of each
Cable Guarantor.
Section 12.09. Release of Cable Guarantee. This Cable Guarantee of a
Cable Guarantor will terminate upon
(a) A sale or other disposition (including by way of consolidation or
merger) of the Cable Guarantor or the sale or disposition of all or
substantially all the assets of the Cable Guarantor (in each case other than to
the Issuer or a Cable Guarantor or a Person who, prior to such sale or other
disposition, is an affiliate of the Issuer or a Cable Guarantor); or
(b) Defeasance or discharge of the Securities, as provided in Article
9.
Upon delivery by the Issuer to the Trustee of an Officers' Certificate
and an Opinion of Counsel to the foregoing effect, the Trustee will execute any
documents reasonably required in order to evidence the release of the Cable
Guarantor from its obligations under its Cable Guarantee.
54
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 first date written above.
AT&T BROADBAND CORP., as Issuer
By:
-------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------------------
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------------------
AT&T COMCAST CORPORATION
By:
-------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------------------
55
COMCAST CABLE COMMUNICATIONS, INC.
By:
-------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------------------
MEDIAONE GROUP, INC.
By:
-------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-------------------------------
AT&T BROADBAND, LLC
By:
-------------------------------
Name:
Title:
[SEAL]
Attest:
By:
-------------------------------
56