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EXHIBIT 4.5
[FORM OF FACE OF EXCHANGE SENIOR DISCOUNT NOTE]
No. Up to: $
9 1/4% Senior Discount Note due 2009
CUSIP No. ______
Bresnan Communications Group LLC, a Delaware limited liability company (the
"Company"), and Bresnan Capital Corporation, a Delaware corporation ("BCC"),
promise to pay to Cede & Co., or registered assigns, the principal amount at
maturity sum as set forth on the Schedule of Increases or Decreases annexed
hereto on February 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
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Additional provisions of this Senior Discount Note are set
forth on the other side of this Senior Discount Note.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
BRESNAN COMMUNICATIONS GROUP LLC,
by Bresnan Communications Company
Limited Partnership, its sole
member
by BCI (USA) L.L.C., managing
general partner
by Bresnan Communications, Inc.,
member
by ________________________________
Name:
Title:
by ________________________________
Name:
Title:
BRESNAN CAPITAL CORPORATION,
by ________________________________
Name:
Title:
by ________________________________
Name:
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Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
STATE STREET BANK AND
TRUST COMPANY,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by:_________________________
Authorized Signatory
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[FORM OF REVERSE SIDE OF EXCHANGE SENIOR DISCOUNT NOTE]
9 1/4% Senior Discount Note due 2009
1. Interest
(a) Bresnan Communications Group LLC, a Delaware limited
liability company (such limited liability company, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the
"Company"), and Bresnan Capital Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called "BCC") promise to, after February 1, 2004, pay
interest on the principal amount at maturity of this Senior Discount Note at the
rate per annum shown above. The Senior Discount Notes will not accrue cash
interest on or prior to February 1, 2004, unless the Company and BCC elect, upon
not less than 60 days prior notice, to commence the accrual of cash interest on
or after February 1, 2002, in which case the outstanding principal amount at
maturity of each Senior Discount Note will on such commencement date be reduced
to the Accreted Value of such Senior Discount Note as of such date and cash
interest shall be payable with respect to such Senior Discount Note on each
February 1 and August 1 thereafter. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Company and BCC shall pay interest on
overdue Accreted Value at the rate borne by the Senior Discount Notes plus 1%
per annum, and it shall pay interest on overdue installments of interest at the
rate borne by the Senior Discount Notes to the extent lawful.
2. Method of Payment
The Company and BCC will pay interest on the Senior Discount
Notes (except defaulted interest) to the Persons who are registered holders of
Senior Discount Notes
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at the close of business on the January 15 or July 15 next preceding the
interest payment date even if Senior Discount Notes are canceled after the
record date and on or before the interest payment date. Holders must surrender
Senior Discount Notes to a Paying Agent to collect Accreted Value payments. The
Company will pay Accreted Value and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Senior Discount Notes represented by a
Global Security (including Accreted Value, premium and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Senior Discount Note (including Accreted Value, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Senior Discount Notes may also be made,
in the case of a Holder of at least $1,000,000 aggregate principal amount at
maturity of Senior Discount Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a
Massachusetts trust company (the "Trustee"), will act as Paying Agent and
Registrar. The Company and BCC may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company and BCC or any of the
Company's domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture
The Company and BCC issued the Senior Discount Notes under an
Indenture dated as of February 2, 1999 (the "Indenture"), among the Company, BCC
and the Trustee. The terms of the Senior Discount Notes include those stated in
the Indenture and those made part of the Indenture by
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reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Senior Discount Notes are subject to all such
terms, and Securityholders are referred to the Indenture and the TIA for a
statement of those terms.
The Senior Discount Notes are senior unsecured obligations of
the Company and BCC limited to $200,000,000 aggregate gross proceeds (subject to
Sections 2.01 and 2.08 of the Indenture). This Senior Discount Note is one of
the Exchange Senior Discount Notes referred to in the Indenture issued in
exchange for Initial Senior Notes. The Senior Discount Notes include the
Exchange Senior Discount Notes, the Original Senior Discount Notes in an
aggregate principal amount at maturity of $275,000,000 (aggregate gross proceeds
of $175,021,000) and up to an aggregate gross proceeds of $24,979,000 additional
Initial Senior Discount Notes that may be issued under the Indenture. The
Exchange Senior Discount Notes, the Original Senior Discount Notes and such
additional Initial Senior Discount Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make Asset Dispositions. The Indenture also imposes limitations on the
ability of the Company and BCC to consolidate or merge with or into any other
Person or sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all of the Property of the Company and BCC. These limitations are
subject to significant exceptions, and most would cease to be effective while
the Senior Discount Notes have an Investment Grade Rating.
5. Optional Redemption
(a) Except as set forth below, the Senior Discount Notes may
not be redeemed prior to February 1, 2004. On and after that date, the Company
and BCC may
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redeem the Senior Discount Notes in whole at any time or in part from time to
time at the following redemption prices (expressed in percentages of Accreted
Value), plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption), if redeemed during the 12-month period beginning on
or after February 1 of the years set forth below:
Period
2004
2005
2006
2007 and thereafter
Redemption
Price
104.625%
103.083%
101.542%
100.000%
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Notwithstanding the foregoing, on or prior to February 1,
2002, the Company and BCC may redeem up to 35% of the original aggregate
principal amount at maturity of the Senior Discount Notes issued with the net
cash proceeds to the Company from one or more Equity Offerings, at a redemption
price equal to 109.250% of the Accreted Value thereof, plus accrued and unpaid
interest thereon, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date that it on or prior to the date of redemption);
provided, however, that after giving effect to any such redemption, at least 65%
of the original aggregate principal amount at maturity of the Senior Discount
Notes remains outstanding. Any such redemption shall be made within 75 days of
such Equity Offering.
6. Sinking Fund
The Senior Discount Notes are not subject to any sinking fund.
7. Notice of Redemption
Notice of optional redemption pursuant to paragraph 5(a) will
be mailed by first-class mail at least 30 days but not more than 60 days before
the redemption date, and notice of mandatory redemption pursuant to paragraph
5(b) will be mailed promptly after the occurrence of the event triggering such
redemption but in no event less than 10 days prior to the Mandatory Redemption
Date, in each case, to each Holder of Senior Discount Notes to be redeemed at
his or her registered address. Senior Discount Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If
money sufficient to pay the redemption price of and accrued and accreted
interest on all Senior Discount Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue and accrete on such Senior Discount Notes (or
such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon
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Change of Control
Upon a Change of Control, any Holder of Senior Discount Notes
will have the right, subject to certain conditions specified in the Indenture,
to cause the Company to repurchase all or any part of the Senior Discount Notes
of such Holder at a purchase price equal to 101% of the Accreted Value of the
Senior Discount Notes to be repurchased plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
9. Denominations; Transfer; Exchange
The Senior Discount Notes are in registered form without
coupons in denominations of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Senior Discount Notes in accordance with the Indenture.
Upon any transfer or exchange, the Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Senior Discount
Notes selected for redemption (except, in the case of a Senior Discount Note to
be redeemed in part, the portion of the Senior Discount Note not to be redeemed)
or to transfer or exchange any Senior Discount Notes for a period of 15 days
prior to a selection of Senior Discount Notes to be redeemed or 15 days before
an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Senior Discount Note may be
treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of Accreted Value or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company and BCC at its written request unless an abandoned property law
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designates another Person. After any such payment, Holders entitled to the money
must look only to the Company and BCC and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company and BCC at any time
may terminate some of or all its obligations under the Senior Discount Notes and
the Indenture if the Company or BCC deposits with the Trustee money or U.S.
Government Obligations for the payment of Accreted Value and interest on the
Senior Discount Notes to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Senior Discount Notes may be amended without prior notice
to any Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal at maturity amount of the outstanding Senior
Discount Notes and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of at least a majority in
principal amount at maturity of the outstanding Senior Discount Notes. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Holder of Senior Discount Notes, the Company, BCC and the Trustee may amend the
Indenture or the Senior Discount Notes (i) to cure any ambiguity, omission,
defect or inconsistency; (ii) to comply with Article V of the Indenture; (iii)
to provide for uncertificated Senior Discount Notes in addition to or in place
of certificated Senior Discount Notes; (iv) to add Guarantees with respect to
the Senior Discount Notes; (v) to reflect the release pursuant to the terms of
the Indenture of a Restricted Subsidiary from its obligations with respect to a
Subsidiary Guarantee; (vi) to secure the Senior Discount Notes; (vii) to add
additional covenants or to surrender rights and powers conferred on the Company;
(viii) to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA; or (ix) to make any change
that does not adversely affect the rights of any Securityholder.
14. Defaults and Remedies
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If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount at maturity of the
Senior Discount Notes then outstanding, subject to certain limitations, may
declare all the Senior Discount Notes to be immediately due and payable. Certain
events of bankruptcy or insolvency are Events of Default and shall result in the
Senior Discount Notes being immediately due and payable upon the occurrence of
such Events of Default without any further act of the Trustee or any Holder.
Holders of Senior Discount Notes may not enforce the Indenture
or the Senior Discount Notes except as provided in the Indenture. The Trustee
may refuse to enforce the Indenture or the Senior Discount Notes unless it
receives reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in aggregate principal amount at maturity of the Senior
Discount Notes then outstanding may direct the Trustee in its exercise of any
trust or power under the Indenture. The Holders of a majority in aggregate
principal amount at maturity of the Senior Discount Notes then outstanding, by
written notice to the Company and the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree, and if all existing Events of Default have been cured or
waived except nonpayment of Accreted Value or interest that has become due
solely because of the acceleration.
15. Trustee Dealings with the Company and BCC
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Senior Discount Notes and may otherwise deal with and
collect obligations owed to it by the Company, BCC or their respective
Affiliates and may otherwise deal with the Company, BCC or their respective
Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or BCC shall not have any liability for
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any obligations of the Company or BCC under the Senior Discount Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Senior Discount Note, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Senior Discount Notes.
17. Authentication
This Senior Discount Note shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Senior Discount
Note.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law
THIS SENIOR DISCOUNT NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company and BCC have caused
CUSIP numbers to be printed on the Senior Discount Notes and have directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Senior Discount Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
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THE COMPANY AND BCC WILL FURNISH TO ANY HOLDER OF SENIOR
DISCOUNT NOTES UPON WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF
THE INDENTURE WHICH HAS IN IT THE TEXT OF THIS SENIOR DISCOUNT NOTE.
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ASSIGNMENT FORM
To assign this Senior Discount Note, fill in the form below:
I or we assign and transfer this Senior Discount Note to
______________________________________________________________
(Print or type assignee's name, address and zip code)
______________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint_____________________________agent to transfer this
Senior Discount Note on the books of the Company. The agent may substitute
another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Senior Discount
Note.
Signature Guarantee:
Date: ______________________ __________________________
Signature must be guaranteed Signature of Signature by a
participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
____________________________________________________________
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount at maturity of this Global
Security is $ . The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal Amount Signature of
Exchange in Principal in Principal at Maturity of authorized
Amount at Maturity Amount at Maturity this Global signatory of
of this Global of this Global Security following Trustee or
Security Security such decrease or Securities
increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SENIOR DISCOUNT
NOTE PURCHASED BY THE COMPANY AND BCC PURSUANT TO SECTION 4.07
(ASSET DISPOSITION) OR 4.13 (CHANGE OF CONTROL) OF THE INDENTURE, CHECK THE BOX:
[ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SENIOR DISCOUNT NOTE PURCHASED BY THE COMPANY AND BCC PURSUANT TO SECTION 4.07
OR 4.13 OF THE INDENTURE, STATE THE AMOUNT:
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE
SENIOR DISCOUNT NOTE)
SIGNATURE GUARANTEE:_______________________________________
SIGNATURE MUST BE GUARANTEED BY A
PARTICIPANT IN A RECOGNIZED SIGNATURE
GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE
TRUSTEE.