1
EXHIBIT 4.1
EXECUTION COPY
Bresnan Communications Group LLC
Bresnan Capital Corporation
8% Senior Notes due 2009
9 1/4% Senior Discount Notes due 2009
INDENTURE
Dated as of February 2, 1999
State Street Bank and Trust Company,
Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions .................................................................... 1
SECTION 1.02. Other Definitions .............................................................. 33
SECTION 1.03. Incorporation by Reference of Trust Indenture Act .............................. 34
SECTION 1.04. Rules of Construction .......................................................... 35
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series ....................................... 36
SECTION 2.02. Form and Dating ................................................................ 38
SECTION 2.03. Execution and Authentication ................................................... 38
SECTION 2.04. Registrar and Paying Agent ..................................................... 39
SECTION 2.05. Paying Agent To Hold Money in Trust ............................................ 39
SECTION 2.06. Securityholder Lists ........................................................... 40
SECTION 2.07. Replacement Securities ......................................................... 40
SECTION 2.08. Outstanding Securities ......................................................... 40
SECTION 2.09. Temporary Securities ........................................................... 41
SECTION 2.10. Cancelation .................................................................... 41
SECTION 2.11. Defaulted Interest ............................................................. 41
SECTION 2.12. CUSIP Numbers .................................................................. 42
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee ............................................................. 42
SECTION 3.02. Selection of Securities To Be Redeemed ......................................... 43
SECTION 3.03. Notice of Redemption ........................................................... 43
SECTION 3.04. Effect of Notice of Redemption ................................................. 44
SECTION 3.05. Deposit of Redemption Price .................................................... 44
SECTION 3.06. Securities Redeemed in Part .................................................... 44
ARTICLE IV
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Covenants
SECTION 4.01. Payment of Securities........................................................... 45
SECTION 4.02. SEC Reports. ................................................................ 45
SECTION 4.03. Limitation on Indebtedness...................................................... 46
SECTION 4.04. Limitation on Restricted Payments............................................... 49
SECTION 4.05. Limitation on Liens............................................................. 53
SECTION 4.06. Limitation on Issuance of Guarantees by Restricted Subsidiaries................. 54
SECTION 4.07. Limitation on Asset Dispositions................................................ 54
SECTION 4.08. Limitation on Restrictions on Distributions from Restricted Subsidiaries........ 57
SECTION 4.09. Limitation on Transactions with Affiliates...................................... 59
SECTION 4.10. Designation of Restricted and Unrestricted Subsidiaries......................... 61
SECTION 4.11. Limitation on Conduct of Business of BCC. ...................................... 63
SECTION 4.12. Limitation on Conduct of Business of the Company and BCC Prior to the
Funding Date................................................................... 63
SECTION 4.13. Change of Control............................................................... 63
SECTION 4.14. Compliance Certificate.......................................................... 65
SECTION 4.15. Applicability of Article IV; Investment Grade Ratings........................... 66
SECTION 4.16. OID Certificate................................................................. 66
SECTION 4.17. Further Instruments and Acts.................................................... 66
ARTICLE V
Successor Company
SECTION 5.01. When Company and BCC May Merge or Transfer Assets............................... 67
SECTION 5.02. Applicability of Article V; Investment Grade Ratings............................ 68
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default............................................................... 69
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SECTION 6.02. Acceleration ................................................................... 71
SECTION 6.03. Other Remedies ................................................................. 72
SECTION 6.04. Waiver of Past Defaults ........................................................ 72
SECTION 6.05. Control by Majority ............................................................ 72
SECTION 6.06. Limitation on Suits ............................................................ 73
SECTION 6.07. Rights of Holders To Receive Payment ........................................... 73
SECTION 6.08. Collection Suit by Trustee ..................................................... 73
SECTION 6.09. Trustee May File Proofs of Claim ............................................... 74
SECTION 6.10. Priorities ..................................................................... 74
SECTION 6.11. Undertaking for Costs .......................................................... 74
SECTION 6.12. Waiver of Stay or Extension Laws ............................................... 75
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee .............................................................. 75
SECTION 7.02. Rights of Trustee .............................................................. 77
SECTION 7.03. Individual Rights of Trustee ................................................... 77
SECTION 7.04. Trustee's Disclaimer ........................................................... 78
SECTION 7.05. Notice of Defaults ............................................................. 78
SECTION 7.06. Reports by Trustee to Holders .................................................. 78
SECTION 7.07. Compensation and Indemnity ..................................................... 78
SECTION 7.08. Replacement of Trustee ......................................................... 79
SECTION 7.09. Successor Trustee by Merger .................................................... 81
SECTION 7.10. Eligibility; Disqualification .................................................. 81
SECTION 7.11. Preferential Collection of Claims Against Company .............................. 81
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance................................ 82
SECTION 8.02. Conditions to Defeasance........................................................ 83
SECTION 8.03. Application of Trust Money...................................................... 84
SECTION 8.04. Repayment to Company............................................................ 84
SECTION 8.05. Indemnity for Government Obligations............................................ 85
SECTION 8.06. Reinstatement. ................................................................ 85
ARTICLE IX
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Amendments
SECTION 9.01. Without Consent of Holders...................................................... 85
SECTION 9.02. With Consent of Holders......................................................... 86
SECTION 9.03. Compliance with Trust Indenture Act............................................. 87
SECTION 9.04. Revocation and Effect of Consents and Waivers................................... 88
SECTION 9.05. Notation on or Exchange of Securities........................................... 88
SECTION 9.06. Trustee To Sign Amendments...................................................... 88
SECTION 9.07. Payment for Consent............................................................. 89
ARTICLE X
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls ................................................... 89
SECTION 10.02. Notices ........................................................................ 89
SECTION 10.03. Communication by Holders with Other Holders ................................... 90
SECTION 10.04. Certificate and Opinion as to Conditions Precedent ............................ 90
SECTION 10.05. Statements Required in Certificate or Opinion ................................. 91
SECTION 10.06. When Securities Disregarded ................................................... 91
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar .................................. 91
SECTION 10.08. Legal Holidays ................................................................ 91
SECTION 10.09. Governing Law ................................................................. 92
SECTION 10.10. No Recourse Against Others .................................................... 92
SECTION 10.11. Successors .................................................................... 92
SECTION 10.12. Multiple Originals ............................................................ 92
SECTION 10.13. Table of Contents; Headings ................................................... 92
Appendix A - Provisions Relating to Original Securities,
Additional Securities, Private Exchange
Securities and Exchange Securities
Exhibit 1 to
Appendix A - Form of Initial Security
Exhibit A - Form of Exchange Security
Exhibit B - Form of Letter of Representation
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Page
CROSS-REFERENCE TABLE
Indenture
Section
310 (a)(1) .................................................................................................. 7.10
(a)(2) .................................................................................................... 7.10
(a)(3) .................................................................................................... N.A.
(a)(4) .................................................................................................... N.A.
(b) ....................................................................................................... 7.08;
7.10
(c) ....................................................................................................... N.A.
311 (a) ..................................................................................................... 7.11
(b) ....................................................................................................... 7.11
(c) ....................................................................................................... N.A.
312 (a) ..................................................................................................... 2.06
(b) ....................................................................................................... 10.03
(c) ....................................................................................................... 10.03
313 (a) ..................................................................................................... 7.06
(b)(1) .................................................................................................... N.A.
(b)(2) .................................................................................................... 7.06
(c) ....................................................................................................... 10.02
(d) ....................................................................................................... 7.06
314 (a) ..................................................................................................... 4.02;
4.14;
10.02
(b) ....................................................................................................... N.A.
(c)(1) .................................................................................................... 10.04
(c)(2) .................................................................................................... 10.04
(c)(3) .................................................................................................... N.A.
(d) ....................................................................................................... N.A.
(e) ....................................................................................................... 10.05
(f) ....................................................................................................... 4.10
315 (a) ..................................................................................................... 7.01
(b) ....................................................................................................... 7.05;
10.02
(c) ....................................................................................................... 7.01
(d) ....................................................................................................... 7.01
(e) ....................................................................................................... 6.11
316 (a)
(last
sentence) ................................................................................................... 10.06
(a)(1)(A) ................................................................................................. 6.05
(a)(1)(B) ................................................................................................. 6.04
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(a)(2) ................................................................................................. N.A.
(b) .................................................................................................... 6.07
317 (a)(1) ............................................................................................. 6.08
(a)(2) ................................................................................................. 6.09
(b) .................................................................................................... 2.05
318 (a) ................................................................................................ 10.01
N.A. Means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be
deemed to be part of this Indenture.
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INDENTURE dated as of February 2, 1999,
among BRESNAN COMMUNICATIONS GROUP LLC, a Delaware
limited liability company (the "Company"), BRESNAN
CAPITAL CORPORATION, a Delaware corporation ("BCC"),
and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
and BCC's 8% Senior Notes due 2009 (the "Initial Senior Notes") and 9 1/4%
Senior Discount Notes due 2009 (the "Initial Senior Discount Notes" and together
with the Initial Senior Notes, the "Initial Securities"), each to be issued,
from time to time, in one or more series as in this Indenture provided and, if
and when issued pursuant to a private exchange for the Initial Securities, the
Company's and BCC's 8% Senior Notes due 2009 (the "Private Exchange Senior
Notes") and 9 1/4% Senior Discount Notes due 2009 (the "Private Exchange Senior
Discount Notes" and together with the Exchange Senior Notes, the "Private
Exchange Securities") and, if and when issued pursuant to a registered exchange
for the Initial Securities or Private Exchange Securities, the Company's and
BCC's 8% Senior Notes due 2009 (the "Exchange Senior Notes") and 9 1/4% Senior
Discount Notes due 2009 (the "Exchange Senior Discount Notes" and together with
the Exchange Senior Notes, the "Exchange Securities"). (The Initial Senior
Notes, together with the Private Exchange Senior Notes and the Exchange Senior
Notes, shall be referred to herein as the "Senior Notes". The Initial Senior
Discount Notes, together with the Private Exchange Senior Discount Notes and the
Exchange Senior Discount Notes, shall be referred to herein as the "Senior
Discount Notes". The Senior Notes, together with the Senior Discount Notes,
shall be referred to herein as the "Securities".)
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
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"Accreted Value" of any outstanding Senior Discount Note as of
or to any date of determination prior to February 1, 2004, or of any other
Indebtedness issued at a price less than the principal amount at stated
maturity, means, as of any date of determination, an amount equal to the sum of
(a) the issue price of such Senior Discount Note or Indebtedness, as applicable,
as determined in accordance with Section 1273 of the Internal Revenue Code or
any successor provisions (which, in the case of the Senior Discount Notes, will
be $636.44 per $1,000 principal amount at maturity of Senior Discount Notes)
plus (b) the aggregate of the portions of the original issue discount (the
excess of the amounts considered as part of the "stated redemption price at
maturity" of such Senior Discount Note or Indebtedness, as applicable, within
the meaning of Section 1273(a)(2) of the Internal Revenue Code or any successor
provisions, whether denominated as principal or interest, over the issue price
of such Senior Discount Note or Indebtedness, as applicable) that shall
theretofore have accrued pursuant to Section 1272 of the Internal Revenue Code
(without regard to Section 1272(a)(7) of the Internal Revenue Code) from the
date of issue of such Senior Discount Note or Indebtedness, as applicable, to
the date of determination (which amount, in the case of the Senior Discount
Notes, shall be amortized on a daily basis and compounded semiannually on each
February 1 and August 1 at a rate of 9 1/4% per annum from the Issue Date
through the date of determination on the basis of a 360-day year of twelve
30-day months), minus all amounts theretofore paid in respect of such Senior
Discount Note or Indebtedness, as applicable, within the meaning of Section
1273(a)(2) of the Internal Revenue Code or any successor provisions (whether
such amounts paid were denominated principal or interest). The Accreted Value of
any outstanding Senior Discount Note on or after February 1, 2004, will mean the
principal amount at maturity of such Senior Discount Note. Notwithstanding the
foregoing, if the Company and BCC elect to pay cash interest on the Senior
Discount Notes on or after February 1, 2002, and prior to February 1, 2004, the
Securities shall cease to accrete, and the Accreted Value and the principal
amount at maturity of such Senior Discount Note shall be the Accreted Value on
the date of commencement of such accrual as calculated in accordance with the
first sentence of this definition.
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"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Restricted Subsidiary of the Company
or (ii) assumed in connection with the acquisition of assets (or from merger or
consolidation with or into) such Person, in each case, other than Indebtedness
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition, as the case may be; provided that
Indebtedness of such Person which is redeemed, defeased, retired or otherwise
repaid at the time of, or substantially contemporaneously with, the consummation
of the transactions by which such Person becomes a Restricted Subsidiary or such
asset acquisition shall not constitute Acquired Indebtedness.
"Affiliate" of any specified Person means (i) any other
Person, directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any individual who is
a director or officer (a) of such specified Person, (b) of any Subsidiary of
such specified Person or (c) of any Person described in clause (i) above. For
the purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For the purposes of Section 4.09, "Affiliate"
shall also mean (x) any beneficial owner of interests representing 10% or more
of the total voting power of the then outstanding Voting Equity Interests (on a
fully diluted basis) of the Company and (y) any Person who would be an Affiliate
pursuant to the first sentence hereof of any such beneficial owner of interests
representing 10% or more of the total voting power of the then outstanding
Voting Equity Interests of the Company.
"Annualized EBITDA" means, with respect to any Person, the
product of such Person's EBITDA for the latest fiscal quarter for which
financial statements are available multiplied by four.
"Asset Disposition" means any transfer, conveyance, sale,
lease, issuance or other disposition by
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the Company or any Restricted Subsidiary in one or more related transactions
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary of the Company, but
excluding a disposition by a Restricted Subsidiary to the Company or a
Restricted Subsidiary or by the Company to a Restricted Subsidiary) of (i)
Equity Interests of a Restricted Subsidiary, (ii) substantially of all the
assets of the Company or any Restricted Subsidiary representing a division or
line of business or (iii) other Property of the Company or any Restricted
Subsidiary outside of the ordinary course of business (excluding any transfer,
conveyance, sale, lease or other disposition of equipment that is obsolete or no
longer used by or useful to the Company; provided that the Company has delivered
to the Trustee an Officers' Certificate stating that such criteria are
satisfied). The following shall not be Asset Dispositions: (i) when used with
respect to the Company, any Asset Disposition permitted pursuant to Article V
which constitutes a disposition of all or substantially all of the assets of the
Company and the Restricted Subsidiaries taken as a whole or any disposition that
constitutes a Change of Control pursuant to this Indenture, (ii) any disposition
that constitutes a Restricted Payment permitted by Section 4.04 or a Permitted
Investment, (iii) a disposition of Temporary Cash Investments and (iv) any
disposition of assets in one or more related transactions with an aggregate Fair
Market Value of less than $1.0 million.
"Assumed TCI Debt" means the indebtedness to be assumed and
repaid by the Parent in connection with the consummation of the TCI Transactions
in accordance with the terms of the Contribution Agreement.
"AT&T Joint Venture" means the joint venture to be entered
into between the Company or a Restricted Subsidiary and AT&T Corp. or an
Affiliate thereof relating to the use of the Company's cable television systems
in connection with the provision of telephony services by the joint venture.
"Attributable Indebtedness" means Indebtedness deemed to be
Incurred in respect of a Sale and Leaseback Transaction and shall be, at the
date of determination, the present value (discounted at the actual rate of
interest
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implicit in such transaction, compounded annually), of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale and Leaseback Transaction (including any period for which such
lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Equity Interest, the quotient obtained
by dividing (i) the sum of the products of the numbers of years (rounded to the
nearest one-twelfth of one year) from the date of determination to the dates of
each successive scheduled principal payment of such Indebtedness or redemption
or similar payment with respect to such Preferred Equity Interest multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Bresnan Family Member" means William J. Bresnan, his spouse
and descendants (including spouses of his descendants), any trust established
solely for the benefit of any of the foregoing individuals, or any partnership
or other entity at least 80%-owned or controlled, directly or indirectly, by any
of the foregoing persons.
"Business Day" means each day that is not a Legal Holiday.
"Cable Business" means the ownership, development, operation
and/or acquisition of cable television systems.
"Cable Programming Business" means the ownership, development
or provision of cable television programming.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Change of Control" means (i) at any time prior to
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the first Public Equity Offering that results in a Public Market, the
occurrence of any of the following events:
(A) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, is (including as a
result of consolidation or merger, sale, transfer, lease conveyance or
other disposition of assets, or otherwise) the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 50% or more of the total voting power of the Voting Equity Interests
of the General Partner at any time that the Permitted Holders are the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, in the aggregate of less than 50% of the total
voting power of the Voting Equity Interests of the Company (for
purposes of this clause (A), such person or group shall be deemed to
beneficially own any Voting Equity Interests of an entity (the
"specified entity") held by any other entity (the "parent entity") so
long as such person or group beneficially owns, directly or indirectly,
in the aggregate a majority of the total Equity Interests of such
parent entity); or
(B) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5 (b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, is (including as a
result of consolidation or merger, sale, transfer, lease conveyance or
other disposition of assets, or otherwise) the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 50% of the total voting power of the Voting Equity
Interests of the Company (for purposes of this clause (B), such person
or group shall
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be deemed to beneficially own any Voting Equity Interests of an entity
(the "specified entity") held by any other entity (the "parent
entity") so long as such person or group beneficially owns, directly
or indirectly, in the aggregate a majority of the total Equity
Interests of such parent entity); or
(C) the holders of the Equity Interests of the Company shall
have approved any plan of liquidation or dissolution of the Company
(other than in connection with a reorganization effected for the sole
purpose of facilitating a Public Equity Offering that is consummated
within 30 days of such approval); and
(ii) on or after the first Public Equity Offering that results
in a Public Market, the occurrence of any of the following events:
(A) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act or any successor provisions to either of the
foregoing), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, other than any one or more of the
Permitted Holders, is (including as a result of consolidation or merger,
sale, transfer, lease conveyance or other disposition of assets, or
otherwise) the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35% or more of the total voting
Power of the Voting Equity Interests of the Company at any time that the
Permitted Holders are the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, in the aggregate of a
lesser percentage of the total voting power of the Voting Equity Interests
of the Company than such other person or group (for purposes of this clause
(A), such person or group shall be deemed to beneficially own any Voting
Equity Interests of an entity (the "specified entity") held by any other
entity (the "parent entity") so long as such person or group beneficially
owns, directly or indirectly, in the aggregate a majority of the total
Equity Interests of such parent entity); or
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(B) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Company (together with any new directors whose election or
appointment by the Board of Directors or whose nomination for election
by the holders of the Voting Equity Interests of the Company was
approved by a vote of a majority of the members then still in office
who were either members at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Company then in office; or
(C) the holders of the Equity Interests of the Company shall
have approved any plan of liquidation or dissolution of the Company.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"Company Employee" means an employee of the Parent, the
General Partner, Bresnan Communications, Inc. or BCI Management, L.P., who, for
the twelve-month period immediately preceding or following the date of
determination, has spent or is reasonably expected in good faith to spend a
substantial amount of his or her working time performing management or
administrative services for the Company.
"Consolidated Interest Expense" means, for any Person (or in
the case of the Company, the Company and its Restricted Subsidiaries), for any
period, the amount of interest in respect of Indebtedness (including
amortization of original issue discount, fees payable in connection with
financing, including commitment, availability and similar fees (but excluding
amortization of deferred financing fees related to the Financings), noncash
interest payments on any Indebtedness and the interest portion of any deferred
payment obligation and after taking into account the effect of elections made
under, and the net costs associated with,
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any Interest Rate Agreement, however denominated, with respect to such
Indebtedness), the amount of Redeemable Dividends in respect of Equity Interests
meeting the requirements of "Disqualified Equity Interests" in such Person, the
amount of Preferred Equity Interest dividends in respect of all Preferred Equity
Interests in Subsidiaries of such Person held by Persons other than such Person
or a Restricted Subsidiary of such Person equal to the quotient of such dividend
divided by the difference between one and the maximum statutory Federal income
tax rate (expressed as a decimal number between 1 and 0) then applicable to the
issuer of such Preferred Equity Interest, commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing, and the interest component of rentals in respect of any Capitalized
Lease Obligation or Sale and Leaseback Transaction paid, accrued or scheduled to
be paid or accrued by such Person during such period, determined on a
consolidated basis in accordance with GAAP. For purposes of this definition,
interest on a Capitalized Lease Obligation or a Sale and Leaseback Transaction
shall be deemed to accrue at an interest rate reasonably determined by such
Person to be the rate of interest implicit in such Capitalized Lease Obligation
or Sale and Leaseback Transaction in accordance with GAAP consistently applied.
"Consolidated Net Income" of a Person means for any period,
the net income (loss) of such Person and its Subsidiaries determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income (i) with respect to the Company, any net income
(loss) of any Person if such Person is not a Restricted Subsidiary, except that
(a) subject to the limitations contained in (iv) below, the Company's equity in
the net income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such Person to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (iii) below) and
(b) the Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in determining such
Consolidated Net Income, (ii) any net income (loss) of any Person acquired by
such Person or a
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Subsidiary of such Person in a pooling of interests transaction for any period
prior to the date of such acquisition, (iii) with respect to the Company, any
net income (loss) of any Restricted Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that (a) subject to the limitations contained in (iv) below, the
Company's equity in the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash that could have been distributed by such Restricted Subsidiary
during such period to the Company or another Restricted Subsidiary as a dividend
(subject, in the case of a dividend to another Restricted Subsidiary, to the
limitation contained in this clause) and (b) the Company's equity in a net loss
of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income, (iv) any net after-tax gain (or loss)
realized upon the sale or other disposition of any property, plant or equipment
of such Person or its consolidated Subsidiaries (including pursuant to any Sale
and Leaseback Transaction) which is not sold or otherwise disposed of in the
ordinary course of business and any gain (or loss) realized upon the sale or
other disposition of any Equity Interests in any Person, (v) any net after-tax
extraordinary gain or loss, (vi) the net after-tax cumulative effect of a change
in accounting principles and (vii) for purposes of calculating the Leverage
Ratio only, any net after-tax income (or loss) from discontinued operations.
"Contribution Agreement" means the Contribution Agreement,
dated as of June 3, 1998, as amended prior to the Issue Date, by and among
Blackstone Cable Acquisition Company, LLC, the Parent and certain of its
affiliates (including William J. Bresnan), TCID of Michigan, Inc., and certain
affiliates of Tele-Communications, Inc.
"Cumulative EBITDA" means at any date of determination the
aggregate amount of EBITDA of the Company during the period (treated as one
accounting period) from the beginning of the first full fiscal quarter following
the fiscal quarter during which the Funding Date occurs to the end of the most
recent fiscal quarter ending prior to the
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date of determination for which financial statements are available or required
or, if such aggregate EBITDA for such period is negative, the amount (expressed
as a negative number) by which such cumulative EBITDA is less than zero.
"Cumulative Interest Expense" means at any date of
determination the aggregate amount of Consolidated Interest Expense paid,
accrued or scheduled to be paid or accrued by the Company and its Restricted
Subsidiaries during the period (treated as one accounting period) from the
beginning of the first full fiscal quarter following the fiscal quarter during
which the Funding Date occurs to the end of the most recent fiscal quarter
ending prior to the date of determination for which financial statements are
available or required determined on a consolidated basis in accordance with
GAAP.
"Default" means any event which is, or after notice or the
passage of time or both would be, an Event of Default.
"Disqualified Equity Interest" means, with respect to any
Person, any Equity Interest that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable) or otherwise
(a)(i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is redeemable at the option of the holder thereof,
in whole or in part, or (iii) is or may become convertible or exchangeable at
the option of the holder for Indebtedness and (b) as to which the maturity,
mandatory redemption, conversion or exchange or redemption at the option of the
holder thereof occurs, or may occur, on or prior to the Stated Maturity of the
Securities; provided, however, that Equity Interests in such Person that would
not otherwise be characterized as Disqualified Equity Interests under this
definition shall not constitute Disqualified Equity Interests if (A) such Equity
Interests are convertible or exchangeable into Indebtedness solely at the option
of such Person or (B) such Equity Interests would be Disqualified Equity
Interests solely because such Equity Interests require such Person to make an
offer to purchase such Equity Interests upon the occurrence of certain events
and such Equity Interests expressly provide that such offer may not be satisfied
until all the Securities have been paid in full.
19
"Domestic Telecommunications Business" means (i) a Person
actively engaged in, or assets constituting plant, property or equipment used in
the operation of, a Cable Business, (ii) a Person actively engaged in a Cable
Programming Business or (iii) a Person actively engaged in, or assets which
comprise, a Related Business the services of which are offered in connection
with the operation, or utilizing the facilities, of a cable television system;
provided that each such Cable Business, Cable Programming Business or Related
Business is located in the United States.
"EBITDA" means, for any Person, for any period, an amount
equal to (A) the sum of (i) Consolidated Net Income for such period, plus, to
the extent deducted in the calculation of Consolidated Net Income, (ii) the
provision for taxes for such period based on income or profits and any provision
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period, plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) any other noncash items reducing
Consolidated Net Income for such period, plus (vii) any fees and expenses
directly related to an offering of the Equity Interests of such Person,
Permitted Investments, acquisitions or recapitalizations (in the case of the
Company, including the recapitalization pursuant to the terms of the
Contribution Agreement) or Indebtedness, in each case, otherwise permitted under
this Indenture, minus (B) all noncash items increasing Consolidated Net Income
for such period, all for such Person and its Subsidiaries determined in
accordance with GAAP consistently applied, except that with respect to the
Company, each of the foregoing items shall be determined on a consolidated basis
with respect to the Company and its Restricted Subsidiaries only.
"Equity Interest Sale Proceeds" means the sum of (a) the
aggregate Net Cash Proceeds received by the Company from (i) the issue or sale
(other than to a Subsidiary of the Company or an employee ownership plan or
trust established by the Company or any Subsidiary of the Company) by the
Company of any class of its Equity Interests (other than Disqualified Equity
Interests) on or after the Issue
20
Date or (ii) contributions to the equity capital of the Company on or after the
Issue Date which do not themselves constitute Disqualified Equity Interests and
(b) the Fair Market Value, as determined by an Independent Appraiser with
experience underwriting debt and/or equity securities for operators of Domestic
Telecommunications Businesses, of any Domestic Telecommunications Business
contributed to the Company by Tele-Communications, Inc. or its Affiliates in
exchange in whole or in part for Equity Interests (other than Disqualified
Equity Interests) in the Company on or after the Issue Date.
"Equity Interests" means, with respect to any Person, any and
all shares or other equivalents (however designated) of corporate stock,
partnership interests or any other participation, right, warrants, options or
other interest (whether or not currently exercisable) in the nature of an
interest in equity in such Person (including Preferred Equity Interests, but
excluding any debt security convertible or exchangeable into such equity
interest), entitling the holders thereof (together with the holders of all other
interests of the same class) to a pro rata share of any dividend or
distribution, or a pro rata participation in any other allocation, of the
profits of such Person.
"Equity Offering" means a public or private offering by the
Company or a Person that owns all the outstanding Equity Interests of the
Company for cash of its Equity Interests (other than Disqualified Equity
Interests).
"Escrow Agreement" means the escrow agreement in the form
attached as Exhibit B to the Purchase Agreement.
"Event of Default" has the meaning set forth under
Section 6.01.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Excluded Contributions" means the aggregate Net Cash Proceeds
received by the Company after the Issue Date from (a) contributions to the
equity capital of the Company (which do not themselves constitute Disqualified
Equity Interests) for the purpose of making an Investment in accordance Section
4.04(b)(ix) and (xi) and (b) the sale
21
(other than to a Subsidiary of the Company or an employee stock ownership plan
or trust established by the Company or any such Subsidiary for the benefit of
their employees) of Equity Interests (other than Disqualified Equity Interests)
of the Company, in each case designated as Excluded Contributions pursuant to an
Officers' Certificate executed by an Officer of the Company, the cash proceeds
of which are excluded from the calculation set forth in Section 4.04(a)(iii).
"Fair Market Value" means with respect to any Property, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value will
be determined, except as otherwise provided, (i) if such Property has a Fair
Market Value of less than $5.0 million, by any Officer of the Company or (ii) if
such Property has a Fair Market Value equal to or in excess of $5.0 million, by
a majority of the Governing Authority and evidenced by a Resolution, dated
within 30 days of the relevant transaction, of the Governing Authority delivered
to the Trustee.
"Funding Date" means either (i) if the Escrow Agreement is not
executed on the date hereof, the date hereof or (ii) if the Escrow Agreement is
executed on the date hereof, the meaning given to such term in the Escrow
Agreement.
"GAAP" means United States generally accepted accounting
principles as in effect in the United States on the Issue Date.
"General Partner" means the Person acting as the
managing general partner of the Parent.
"Governing Authority" means, with respect to the Company, the
General Partner (subject to the approval of the limited partners of the Parent,
when and as provided in the Partnership Agreement), the advisory committee, the
executive committee, management committee, board of directors or similar
governing body of the Company, or any authorized committee thereof, in any such
case, with the authority to manage the business and affairs of the Company.
22
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose 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, however, 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.
"Hedging Obligation" of any Person means any obligation of
such Person pursuant to any Interest Rate Agreement, foreign exchange contract,
currency swap agreement, currency option or any other similar agreement or
arrangement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Security register described in Section 2.04 as the
registered holder of any Security.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by merger, conversion,
exchange or otherwise), extend, assume, Guarantee or become liable in respect of
such Indebtedness or other obligation or the recording, as required pursuant to
GAAP or otherwise, of any such Indebtedness or obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall
have meanings correlative to the foregoing); provided, however, that a change in
GAAP that results in an obligation of such Person that exists at such time, and
is not theretofore classified as Indebtedness, becoming Indebtedness shall not
be deemed an Incurrence of such Indebtedness; provided further that solely for
purposes of determining compliance with Section
23
4.03, amortization of debt discount shall not be deemed to be the Incurrence of
Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness, secured or unsecured, contingent or otherwise,
which is for borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments or representing the balance
deferred and unpaid of the purchase price of any Property (excluding any
balances that constitute subscriber advance payments and deposits, accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included, (i) any
Capitalized Lease Obligations, (ii) Indebtedness of other Persons secured by a
Lien to which the Property owned or held by such first-named Person is subject,
whether or not the obligation or obligations secured thereby shall have been
assumed (the amount of such Indebtedness being deemed to be the lesser of the
value of such Property or the amount of the Indebtedness so secured), (iii)
Guarantees of Indebtedness of other Persons, (iv) any Disqualified Equity
Interests, (v) any Attributable Indebtedness, (vi) all obligations of such
Person in respect of letters of credit, bankers' acceptances or other similar
instruments or credit transactions (including reimbursement obligations with
respect thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations entered into in connection with the
borrowing of money or the obtaining of advances or credit (other than the
extension of credit represented by the issuance for the account of the Company
or any of its Restricted Subsidiaries of such letter of credit itself)) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit, (vii) Preferred Equity Interests (owned other than by such Person) in
its Restricted Subsidiaries and (viii) any payment obligations of any such
Person at the
24
time of determination under any Hedging Obligation. For purposes of this
definition, the maximum fixed repurchase price of any Disqualified Equity
Interest that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interest as if such
Disqualified Equity Interest were repurchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture; provided, however,
that if such Disqualified Equity Interest is not then permitted to be
repurchased, the repurchase price shall be the book value of such Disqualified
Equity Interest. 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 the maximum liability of any contingent obligations in
respect thereof at such date. In the case of Indebtedness sold at a discount,
the amount of such Indebtedness shall at all times be the Accreted Value of such
Indebtedness at the date of determination as determined in conformity with GAAP.
For purposes of this definition, the amount of the payment obligation with
respect to any Hedging Obligation shall be an amount equal to (i) zero, if such
obligation is an Interest Rate Agreement permitted pursuant to Section
4.03(b)(vi) or (ii) the amount appearing as a liability under GAAP in respect of
such Hedging Obligation, if such Hedging Obligation is not an Interest Rate
Agreement so permitted. Notwithstanding the foregoing, Indebtedness shall not
include any interest or accrued interest.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Independent Appraiser" means an investment banking firm of
national standing or any third-party appraiser of national standing; provided,
however, that such firm or appraiser is not an Affiliate of the Company or
Tele-Communications, Inc.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar agreement.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended.
"Investment" by any Person means any direct or indirect loan
or advance (other than advances to customers in the ordinary course of business
that are recorded as accounts receivable on the balance sheet of such Person) or
other extension of credit or capital contribution (by means of transfers of cash
or other Property to others or payments for Property or services for the account
or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Equity Interests, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by, any other
Person. In determining the amount of any Investment made by transfer of any
Property other than cash, such Property shall be valued at its Fair Market Value
at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Moody's and BBB-(or the equivalent) by S&P.
"Issue Date" means the date on which the Original
Securities are initially issued.
"Leverage Ratio" means the ratio of (i) the outstanding
Indebtedness of a Person and its
25
Restricted Subsidiaries to (ii) the Annualized EBITDA of such Person and its
Restricted Subsidiaries.
For purposes of computing the Company's Leverage Ratio, if (a)
since the beginning of the relevant period, the Company or any Restricted
Subsidiary shall have made any Asset Disposition or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any Person that becomes a Restricted
Subsidiary) or an acquisition of Property which constitutes all or substantially
all of an operating unit of a business (including cable television systems) or
shall have Incurred or Repaid any Indebtedness or shall have classified in
accordance with GAAP any operations as discontinued, (b) the transaction giving
rise to the need to calculate the Leverage Ratio is such an Asset Disposition,
Investment, acquisition, Incurrence or Repayment of Indebtedness or
discontinuation of operations or (c) since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning of such
period) shall have made such an Asset Disposition, Investment or acquisition,
Incurrence or Repayment of Indebtedness or discontinuation of operations, the
Leverage Ratio for such period shall be calculated after giving pro forma effect
to such Asset Sale, Investment, acquisition, Incurrence or Repayment of
Indebtedness or discontinuation of operations as if such Asset Disposition,
Investment, acquisition, Incurrence or Repayment of Indebtedness or
discontinuation of operations occurred on the first day of such period.
Any such pro forma calculation may include adjustments in the
reasonable determination of the Company as quantified and set forth in an
Officers' Certificate, to (i) reflect identified operating expense reductions
reasonably expected to result from any acquisition or (ii) eliminate the effect
of any extraordinary accounting event with respect to any acquired Person on
Consolidated Net Income.
"Lien" means with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capitalized
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction); provided that in no event shall an operating lease that
is not a Capitalized Lease Obligation or Sale and Leaseback Transaction be
deemed to constitute a Lien.
"Moody's" means Moody's Investors Service, Inc., or any
successor to the rating agency business thereof.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or cash equivalents received (including amounts received by
way of sale or discounting of any note, installment receivable or other
26
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Indebtedness or other obligations relating to such
Property) therefrom by such Person, net of (i) all legal, title and recording
taxes, expenses and commissions and other fees and expenses (including
appraisals, brokerage commissions and investment banking fees) Incurred and all
Federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Subsidiaries on any Indebtedness which is secured by such
Property in accordance with the terms of any Lien upon or with respect to such
Property or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures of such Person as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Subsidiary thereof, as
the case may be, as a reserve in accordance with generally accepted accounting
principles against any liabilities associated with such Property and retained by
such Person or any Subsidiary thereof, as the case may be, after such Asset
Disposition, including liabilities under any indemnification obligations and
severance and other employee termination costs associated with such Asset
Disposition, in each case as determined by the governing body of such Person, in
its reasonable good faith judgment evidenced by a resolution of such governing
body filed with the Trustee; provided, however, that any reduction in such
reserve within 12 months following the consummation of such Asset Disposition
will be, for all purposes of this Indenture and the Securities, treated as a new
Asset Disposition at the time of such reduction with Net Available Proceeds
equal to the amount of such reduction; provided further, however, that, in the
event that any consideration for a transaction (which would otherwise constitute
Net Available Proceeds) is required to be held in escrow pending determination
of whether a purchase price adjustment will be made, at such time as such
portion of the consideration is released to such Person or its Restricted
Subsidiary from escrow, such portion shall be treated for all purposes of this
Indenture and the Securities as a new Asset Disposition at the time of such
release from escrow
27
with Net Available Proceeds equal to the amount of such portion of consideration
released from escrow.
"Net Cash Proceeds", with respect to any issuance or sale of
Equity Interests, means the aggregate cash or Temporary Cash Investments
received as proceeds of such issuance or sale, net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"New Credit Facility" means the Loan Agreement to be dated as
of the Funding Date by and among Bresnan Telecommunications Company LLC, as
borrower, and the lenders from time to time party thereto, including any
collateral documents, instruments and agreements executed in connection
therewith, substantially on terms as described in the Offering Memorandum under
"Description of the New Credit Facility". The term "New Credit Facility" shall
also include any amendments, supplements, modifications, extensions, renewals,
restatements or refundings thereof with another credit facility and any credit
facilities that replace, refund or refinance any part of the loans, other credit
facilities or commitments thereunder, including any such replacement, refunding
or refinancing facility that increases the amount that may be borrowed
thereunder or alters the maturity thereof, with the same or different lenders.
"New Supply Agreement" means the programming supply agreement,
dated as of the Funding Date, between BTC and Satellite Services, Inc., a
subsidiary of Tele-Communications, Inc.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company to each Holder of Securities offering to purchase up to the
principal amount in the case of the Senior Notes and the principal amount at
maturity in the case of the Senior Discount Notes specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "Expiration Date") of the Offer to Purchase which shall
be, subject to any contrary
28
requirements of applicable law, not less than 30 days or more than 60 days
after the date of such Offer and a settlement date (the "Purchase Date") for
purchase of Securities within 5 Business Days after the Expiration Date. The
Company shall notify the Trustee at least 10 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to this Indenture
(which requirements may be satisfied by delivery of such documents together with
the Offer), (ii) a description of material developments in the Company's
business subsequent to the date of the latest of such financial statements
referred to in clause (i) (including a description of the events requiring the
Company to make the Offer to Purchase), (iii) if applicable, appropriate pro
forma financial information concerning the Offer to Purchase and the events
requiring the Company to make the Offer to Purchase and (iv) any other
information required by applicable law to be included therein). The Offer shall
contain all instructions and material necessary to enable such Holders to tender
Securities pursuant to the Offer to Purchase. The Offer shall also state:
(a) the Section of this Indenture pursuant to
which the Offer to Purchase is being made;
(b) the Expiration Date and the Purchase Date;
(c) the aggregate principal amount in the case of the
outstanding Senior Notes and aggregate principal amount at maturity in
the case of the outstanding Senior Discount Notes offered to be
purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such amount has
29
been determined pursuant to Section 4.07) (the "Purchase Amount");
(d) the purchase price to be paid by the Company for $1,000
aggregate principal amount in the case of the Senior Notes and
aggregate principal amount at maturity in the case of the Senior
Discount Notes accepted for payment (as specified pursuant to this
Indenture) (the "Purchase Price");
(e) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount in the case of the Senior Notes and principal
amount at maturity in the case of the Senior Discount Notes;
(f) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(g) that any Securities not tendered or tendered but not
purchased by the Company will continue to accrue or accrete interest,
as the case may be;
(h) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon, if any, shall cease
to accrue or accrete, as the case may be, on and after the Purchase
Date;
(i) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his or her attorney
duly authorized in writing);
(j) that Holders will be entitled to withdraw all
30
or any portion of Securities tendered if the Company (or the Paying
Agent) receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount in the case
of the Senior Notes and the principal amount at maturity in the case
of the Senior Discount Notes the Holder tendered, the certificate
number of the Security the Holder tendered and a statement that such
Holder is withdrawing all or a portion of his or her tender;
(k) that (i) if Securities in an aggregate principal amount in
the case of the Senior Notes and aggregate principal amount at maturity
in the case of the Senior Discount Notes less than or equal to the
Purchase Amount are duly tendered and not withdrawn pursuant to the
Offer to Purchase, the Company shall purchase all such Securities and
(ii) if Securities in an aggregate principal amount in the case of the
Senior Notes and aggregate principal amount at maturity in the case of
the Senior Discount Notes in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Securities having an aggregate principal amount in the case of
the Senior Notes and aggregate principal amount at maturity in the case
of the Senior Discount Notes equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 principal amount in the case of
the Senior Notes and principal amount at maturity in the case of the
Senior Discount Notes or integral multiples thereof shall be
purchased); and
(l) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, or any authorized denomination
as required by such Holder, in an aggregate principal amount in the
case of the Senior Notes and aggregate principal amount at maturity in
the case of the Senior Discount Notes equal to and in exchange for the
unpurchased portion of the Security so tendered.
31
Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase. The Company and BCC will
comply, to the extent applicable, with the requirements of Rule 14e-1 under the
Exchange Act, and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities in connection with an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
relating to the Offer to Purchase, the Company and BCC will comply with the
applicable securities laws and regulations and will not be deemed to have
breached their obligations described above by virtue thereof.
"Offering Memorandum" means the Offering Memorandum dated
January 25, 1999, pursuant to which the Original Securities were offered.
"Officer" means, with respect to the Company, the President,
the Chief Executive Officer, the Chief Financial Officer, any Senior Vice
President, any Executive Vice President, the Vice President--Finance, the Vice
President--Controller, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers at least one of whom shall be the principal
executive officer, principal financial officer, treasurer or principal
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be counsel to the
Company, the General Partner or the Trustee.
"Parent" means Bresnan Communications Company Limited
Partnership, a Michigan limited partnership and owner of all of the equity
interests of the Company.
"Partnership Agreement" means the Amended and Restated
Limited Partnership Agreement of the Parent, dated as of the Funding Date.
32
"Pass-Through Entity" means a partnership, limited liability
company, "S corporation" or any other entity that is not subject to federal
income tax and whose members are taxed on a distributive share of such entity's
income.
"Permitted Holder" shall mean any Bresnan Family Member, TCI
Communications Inc. and its successors (resulting from any corporate
reorganization contemplated on the Issue Date or any internal corporate
reorganization), Blackstone Capital Partners III Merchant Banking Fund L.P. and,
in each case, their respective Affiliates. Any person or group whose acquisition
of beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this
Indenture will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) a Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Cable
Business, a Cable Programming Business or a Related Business; (ii) another
Person if as a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Restricted Subsidiary; provided, however, that such
Person's primary business is a Cable Business, a Cable Programming Business or a
Related Business; (iii) Temporary Cash Investments; (iv) receivables owing to
the Company or any Restricted Subsidiary, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; (v) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business; (vi)
loans and advances to Company Employees (such loans to be made either directly
to such employees or through the Parent, the General Partner, Bresnan
Communications, Inc., or BCI Management, L.P.); provided that such loans and
advances do not exceed $5.0 million at any one time outstanding; (vii) any
Person to the extent such Investment represents the noncash portion of the
consideration received in connection with an Asset Sale consummated in
compliance
33
with Section 4.07; (viii) Equity Interests, obligations or securities received
in settlement of debts created in the ordinary course of business and owing to
the Company or any Restricted Subsidiary or in satisfaction of judgments; (ix)
any Investment existing on the Funding Date; and (x) Investments consisting of
the licensing or contribution of intellectual property (excluding franchises and
licenses required to own or operate Property) pursuant to joint marketing
arrangements with other Persons.
"Permitted Liens" means (i) Liens Incurred by the Company or
any of its Restricted Subsidiaries if, after giving effect to such Incurrence on
a pro forma basis, the amount of the total Indebtedness of the Company and its
Restricted Subsidiaries that is secured by a Lien does not exceed the product of
the Annualized EBITDA of the Company multiplied by 2.5; (ii) Liens on the
Property of the Company or any of its Restricted Subsidiaries existing on the
Issue Date; (iii) Liens on the Property of the Company or any of its Restricted
Subsidiaries to secure any extension, renewal, refinancing, replacement or
refunding (or successive extensions, renewals, refinancings, replacements or
refundings), in whole or in part, of any Indebtedness secured by Liens referred
to in any of clauses (i), (ii), (vii) or (x); provided, however, that any such
Lien will be limited to all or part of the same Property that secured the
original Indebtedness (plus improvements on such Property) and the aggregate
principal amount of Indebtedness that is secured by such Lien will not be
increased to an amount greater than the sum of (A) the outstanding principal
amount, or, if greater, the committed amount, of the Indebtedness described
under clauses (i), (ii), (vii) and (x) at the time the original Lien became a
Permitted Lien under this Indenture and (B) an amount necessary to pay any
premiums, fees and other expenses Incurred by the Company or any of its
Restricted Subsidiaries in connection with such extension, renewal, refinancing,
replacement or refunding; (iv) Liens for taxes, assessments or governmental
charges or levies on the Property of the Company or any of its Restricted
Subsidiaries if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings; (v) Liens imposed by law, such as landlords' and carriers',
warehousemen's, suppliers', materialmen's, repairmen's and mechanics' Liens and
other similar Liens on
34
the Property of the Company or any of its Restricted Subsidiaries which secure
payment of obligations not more than 60 days past due or are being contested in
good faith and by appropriate proceedings; (vi) Liens on the Property of the
Company or any of its Restricted Subsidiaries Incurred to secure performance of
obligations with respect to statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of a like nature and
Incurred in a manner consistent with industry practice; (vii) Liens on Property
at the time the Company or any of its Restricted Subsidiaries acquired such
Property, including any acquisition by means of a merger or consolidation with
or into the Company or any of its Restricted Subsidiaries; provided, however,
that such Lien shall not have been Incurred in anticipation of such transaction
or series of related transactions pursuant to which such Property was acquired
by the Company or any of its Restricted Subsidiaries; (viii) zoning
restrictions, licenses, restrictions on the use of real property, minor
irregularities in the title thereto, or other Liens on the Property of the
Company or any of its Restricted Subsidiaries incidental to the conduct of their
respective businesses or the ownership of their respective Properties which
(except for acknowledgments in any credit agreement of the lenders' right to set
off deposits held by such lenders so long as such deposits were made in the
ordinary course of business and not with the intent to provide collateral to
such lenders) were not created in connection with the Incurrence of Indebtedness
or the obtaining of advances or credit and which do not in the aggregate
materially detract from the value of their respective Properties or materially
impair the use thereof in the operation of their respective businesses; (ix)
pledges or deposits by the Company or any of its Restricted Subsidiaries under
workers' compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which the Company or any of its
Restricted Subsidiaries is a party, or deposits to secure public or statutory
obligations of the Company or any of its Restricted Subsidiaries, or deposits
for the payment of rent; (x) Liens on Property securing Acquired Indebtedness;
provided, however, that any such Lien (A) was not Incurred in connection with,
or in contemplation of, the Person obligated with respect to such Acquired
Indebtedness becoming a Restricted Subsidiary or the acquisition relating to
such Acquired Indebtedness and (B) may not extend to any other Property of the
Company or any other Restricted Subsidiary which is not a direct Subsidiary of
such Person; (xi) utility easements, rights-of-way, building restrictions and
such other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character and which
do not in the aggregate materially detract from the value or materially impair
the use of such property; (xii) leases or subleases granted to others not
materially interfering with the ordinary course of business of the Company and
its Subsidiaries; (xiii) customary Liens contained in asset sale agreements
limiting the transfer of such assets pending the closing of such sale or created
by the grant of options to purchase such assets; provided, in any such case, the
sale of such assets is not otherwise prohibited under this Indenture; (xiv)
Liens on the Property of a Restricted Subsidiary securing Indebtedness of such
Restricted Subsidiary owed to the Company; (xv) judgment Liens in an aggregate
amount outstanding at any one time of not more than
35
$15.0 million; provided such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such judgment
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired; (xvi) any interest or title
of a lessor under any Capitalized Lease Obligation otherwise permitted under
this Indenture; provided that such Liens do not extend to any Property which is
not leased property subject to such Capitalized Lease Obligation; (xvii) Liens
to secure Indebtedness permitted to be incurred under Section 4.03(b)(ix);
provided that any such Lien (A) may not extend to any Property of the Company or
any Restricted Subsidiary other than the Property acquired, constructed or
leased with the proceeds of such Indebtedness any improvements or accessions to
such Property and (B) shall be created within 180 days of the acquisition,
construction or lease of such Property by the Company or such Restricted
Subsidiary; (xviii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person in the ordinary
course of business to facilitate the purchase, shipment or storage of such
inventory or other goods; (xix) Liens securing reimbursement obligations with
respect to commercial letters of credit created in the ordinary course of
business which encumber Property relating to such letters of credit and products
and proceeds thereof; (xx) Liens securing Indebtedness under Hedging Obligations
otherwise permitted under this Indenture; (xxi) Liens securing Indebtedness
outstanding under the New Credit Facility that are created while commitments
under the New Credit Facility are outstanding; and (xxii) Liens on Equity
Interests of Unrestricted Subsidiaries to secure nonrecourse Indebtedness of
such Unrestricted Subsidiary; provided that any such Lien may not extend to any
Property of the Company or any Restricted Subsidiary other than such Equity
Interests; provided further that any holder of Indebtedness of the Company or
any Restricted Subsidiary shall not have the ability to declare a default or
accelerate payment thereunder upon the occurrence of a default under the
Indebtedness secured by such Lien.
"Permitted Refinancing Indebtedness" means any extensions,
renewals, substitutions, refinancings or replacements of any Indebtedness,
including any successive extensions, renewals, substitutions, refinancings or
replacements so long as (i) such Permitted Refinancing Indebtedness is incurred
in an aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate principal
amount (or if issued with original issue discount, the aggregate accreted value)
then outstanding of the Indebtedness being refinanced plus any interest and
premium payable thereon and any fees and expenses incurred in connection
therewith, (ii) the Average Life of such Indebtedness is equal to or greater
than the Average Life of the Indebtedness being refinanced, (iii) the Stated
Maturity of such Indebtedness is no earlier than the earlier of (a) the Stated
Maturity of the Indebtedness being extended, renewed, substituted for,
refinanced or replaced and (b) the first anniversary of the Stated Maturity of
the Securities and (iv) to the extent such new Indebtedness extends, renews,
substitutes for, refinances or replaces Indebtedness subordinated or pari passu
to the Securities, such new Indebtedness is subordinated or pari passu to the
same extent as the Indebtedness being extended, renewed, substituted for,
refinanced or replaced; provided that Permitted Refinancing Indebtedness shall
not include (a) Indebtedness of a Restricted Subsidiary that refinances
Indebtedness of the Company except to the extent that such Restricted Subsidiary
was, prior to such refinancing, a guarantor of such Indebtedness, or (b)
Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary; and provided further that, subject
to the foregoing proviso, subclause (iv) of this definition will not apply to
any extension, renewal, substitution for refinancing or replacement of
Indebtedness of any Restricted Subsidiary that is not a guarantor of the
Securities.
"Person" means any individual, corporation, company (including
limited liability company), partnership, joint venture, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Equity Interest" means any Equity Interest in a
Person, however designated, which entitles the holder thereof to a preference
with respect to dividends, distributions or liquidation proceeds of such Person
over the holders of other Equity Interests issued by such Person.
"principal" of any Indebtedness (including the Securities)
means the principal amount of such Indebtedness plus the premium, if any, on
such Indebtedness.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including, without limitation, Equity Interests in
any other Person (but excluding Equity Interests or other securities issued by
such Person).
"Public Equity Offering" means an underwritten public offering
of common stock of the Company (or a corporation owning all of the outstanding
Equity Interests of the Company) pursuant to an effective registration statement
under the Securities Act.
36
"Public Market" means any time after (a) a Public Equity
Offering has been consummated and (b) at least 15% of the total issued and
outstanding common stock of the Company (or a corporation owning all of the
outstanding Equity Interests of the Company) has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness (a)
consisting of the deferred purchase price of property, conditional sale
obligations, obligations under any title retention agreement, other purchase
money obligations and obligations in respect of industrial revenue bonds, in
each case where the Stated Maturity of such Indebtedness does not exceed the
anticipated useful life of the Property being financed, and (b) Incurred to
finance the acquisition, construction or lease by the Company or a Restricted
Subsidiary of such Property, including additions and improvements thereto;
provided, however, that such Indebtedness is Incurred within 180 days after the
acquisition, construction or lease of such Property by the Company or such
Restricted Subsidiary.
"Rating Agencies" mean Moody's and S&P.
"Redeemable Dividend" means, for any dividend with regard to
Disqualified Equity Interests, the quotient of the dividend divided by the
difference between one and the maximum statutory Federal income tax rate
(expressed as a decimal number between 1 and 0) then applicable to the issuer of
such Disqualified Equity Interests.
"Related Business" means the provision of high-speed data
services, Internet access, interactive services, telephony (including personal
communications services) and/or any other telecommunications service.
"Relevant Taxpayer" means (i) in the case of any beneficial
owner of an Equity Interest in the Company that is an individual, such
individual; (ii) in the case of any beneficial owner of an Equity Interest in
the Company that is taxed as a corporation, such corporation; (iii) in the case
of any beneficial owner of an Equity Interest in the Company that is a
Pass-Through Entity, such Pass-Through
37
Entity itself and any indirect individual, corporate, trust or estate beneficial
owner of an Equity Interest in the Company through such Pass-Through Entity; and
(iv) in the case of any direct or indirect beneficial owner of an Equity
Interest in the Company that is a trust or an estate, such trust or estate and
any individual (or other trust and estate) which is a beneficiary of such trust
or estate to the extent that such individual (or other trust or estate) is
taxable on the income of such trust or estate. A Person shall be considered an
indirect owner of an Equity Interest in the Company only to the extent that such
Person has an indirect interest in the Company through a Pass-Through Entity or
a trust or estate or through multiple tiers of Pass-Through Entities, trusts or
estates (or any combination thereof). Notwithstanding anything in this paragraph
to the contrary, the term Relevant Taxpayer shall not include
Tele-Communications, Inc., or any affiliate thereof.
"Repay" means, in respect of any Indebtedness, to repay,
prepay, repurchase, redeem, legally defease or otherwise retire such
Indebtedness. "Repayment" and "Repaid" shall have correlative meanings. For
purposes of Section 4.07 and the definition of "Leverage Ratio", Indebtedness
shall be considered to have been Repaid only to the extent the related loan
commitment, if any, shall have been permanently reduced in connection therewith.
"Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the General Partner to
have been duly adopted by the Governing Authority (or the General Partner if the
General Partner constitutes the Governing Authority (subject to the adoption by
the limited partners of the Parent, when and as provided in the Partnership
Agreement)) and to be in full force and effect on the date of such certification
and delivered to the Trustee.
"Restricted Payment" means (i) any dividend or distribution
(whether made in cash, Property or securities) declared or paid on or with
respect to any Equity Interest in the Company except dividends or distributions
payable solely in Equity Interests (other than Disqualified Equity Interests) in
the Company or in warrants, rights, or options to purchase or acquire (other
than debt securities convertible into an Equity Interest), directly or
38
indirectly, any Equity Interests (other than Disqualified Equity Interests) in
the Company; (ii) a payment made by the Company or any Restricted Subsidiary to
purchase, redeem, acquire or retire any Equity Interests in the Company or
Equity Interests in any Affiliate of the Company (other than a Restricted
Subsidiary) or any warrants, rights or options to directly or indirectly
purchase or acquire any such Equity Interests or any securities exchangeable for
or convertible into any such Equity Interests, except for payments made to the
Company or a Restricted Subsidiary; (iii) a payment made by the Company or any
Restricted Subsidiary to redeem, repurchase, defease or otherwise acquire or
retire for value, prior to any scheduled maturity, scheduled sinking fund or
mandatory redemption payment (other than the purchase, repurchase, or other
acquisition of any Indebtedness subordinate in right of payment to the
Securities purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of acquisition), Indebtedness of the Company which is subordinate (whether
pursuant to its terms or by operation of law) in right of payment to the
Securities; (iv) an Investment (other than Permitted Investments), including a
deemed Investment pursuant to Section 4.10(a)(ii)(B), in any Person.
"Restricted Subsidiary" means (a) BCC; (b) any Subsidiary of
the Company unless such Subsidiary shall have been designated as an Unrestricted
Subsidiary as permitted pursuant to Section 4.10 and (c) an Unrestricted
Subsidiary which is redesignated as a Restricted Subsidiary as permitted
pursuant to Section 4.10.
"S&P" means Standard & Poor's Ratings Service or any successor
to the rating agency business thereof.
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
"SEC" means the Securities and Exchange
Commission.
39
"Securities Act" means the Securities Act of 1933,
as amended.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Act as such Regulation is in effect on the Issue Date.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal or Accreted Value, as applicable, of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond the control of the
issuer unless such contingency has occurred).
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Equity Interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, officers or trustees thereof is held by such first-named
Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise if in accordance with GAAP such entity is consolidated with the
first-named Person for financial statement purposes.
"Tax Distribution" shall have the meaning given to such term
in Section 3.3(a) of the Partnership Agreement as in effect on the Funding Date
(as such Tax Distribution is described in the Offering Memorandum under
"Description of the Partnership Agreement--Tax Distributions").
"Tax Liability" means an amount, for each year, equal to the
Tax Distribution determined with respect to
40
each Relevant Taxpayer.
"TCID Note" means the note dated May 12, 1988 issued by the
Parent to TCID of Michigan, Inc., a Nevada corporation, in the principal amount
of $25,000,000.
"TCI Transactions" means the transactions contemplated by the
Contribution Agreement, including the contribution of all cable television
systems owned by the Parent and certain cable television systems owned by
affiliates of Tele-Communications, Inc., in each case to a subsidiary of the
Company.
"Tele-Communications, Inc." means Tele-Communications, Inc.,
a Delaware corporation, and any successor thereto by way of merger or
consolidation or by transfer of all or substantially all the assets of such
first-named Person.
"Temporary Cash Investments" means any of the following: (i)
Investments in U.S. Government Obligations or in securities guaranteed by the
United States of America, in each case maturing within 90 days of the date of
acquisition thereof, (ii) Investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America or any State thereof having capital,
surplus and undivided profits aggregating in excess of $500.0 million and whose
long-term debt is rated "A-3" or "A-" or higher according to Moody's or S&P (or
such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)), (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) entered into with a
bank meeting the qualifications described in clause (ii) above, (iv) Investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation organized and in existence under the laws
of the United States of America with a rating at the time as of which any
Investment therein is made of "P-l" (or higher) according to Moody's or "A-l"
(or higher) according to S&P
41
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)) and (v) investments in money market funds that are registered under the
Investment Company Act of 1940, which have net assets of at least $500.0 million
and at least 85% of whose assets are investments or other obligations of the
type described in clauses (i) through (iv) of this definition.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that, in the event the TIA is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendments, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer within the Corporate Trust
Division of the Trustee (or any successor group of the trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Company which is designated after the Issue Date as an Unrestricted Subsidiary
as permitted pursuant to Section 4.10 and (b) any Subsidiary of an Unrestricted
Subsidiary and until such time, in each case, as it may thereafter be
redesignated as a Restricted Subsidiary as permitted pursuant to Section 4.10.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not
42
callable or redeemable at the issuer's option.
"Voting Equity Interests" means the Equity Interests in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect or appoint the board of directors,
executive committee or other governing body of such corporation or Person or
generally having the right to vote with respect to organizational matters of
such Person or generally having the right to vote with respect to or veto
significant transactions or activities with respect to such Person or a Person
holding a majority interest in such Person; provided, however, that Preferred
Equity Interests with customary contingent voting rights shall not be deemed
Voting Equity Interests solely by virtue of such contingent voting rights.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company, greater than 95% of the then outstanding Equity Interests in which
(other than directors' qualifying shares) are owned by the Company and/or one or
more other Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"................................ 4.09
"Bankruptcy Law"....................................... 6.01
"Base Amount".......................................... 4.04
"Change of Control Offer".............................. 4.13
"Change of Control Payment Date"....................... 4.13
"Change of Control Purchase Price"..................... 4.13
"covenant defeasance option"........................... 8.01
"Custodian"............................................ 6.01
"Event of Default"..................................... 6.01
"Excess Proceeds"...................................... 4.07
"Exchange Security".................................... Appendix A
"First Six Fiscal Quarters"............................ 4.03
"Funding Conditions"................................... Appendix A
"Global Security"...................................... Appendix A
"Guaranteed Indebtedness............................... 4.06
"legal defeasance option".............................. 8.01
"Legal Holiday"........................................ 10.08
"Mandatory Redemption Date"............................ Appendix A
"OID".................................................. 2.01
"Original Securities".................................. 2.01
43
"Original Senior Discount Notes........................ 2.01
"Original Senior Notes"................................ 2.01
"Paying Agent"......................................... 2.04
"Private Exchange Security"............................ Appendix A
"Purchase Date"........................................ 4.07
"Registered Exchange Offer"............................ Appendix A
"Registrar"............................................ 2.04
"Shelf Registration Statement"......................... Appendix A
"Subsidiary Guarantee"................................. 4.06
"Surviving Person"..................................... 5.01
"Suspended Covenants".................................. 4.15
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Prior to the effectiveness of the registration statement relating to the
Registered Exchange Offer or the Shelf Registration Statement, this Indenture
shall be governed by the provisions of the TIA. After the effectiveness of
either the registration statement relating to the Registered Exchange Offer or
the Shelf Registration Statement, this Indenture shall be subject to the
provisions of the TIA that are required to be a part of this Indenture and
shall, to the extent applicable, be governed by such provisions. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means the Company, BCC
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
44
SECTION 1.04. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the Accreted Value of any noninterest bearing or other
discount security at any date shall be the Accreted Value thereof that
would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Equity Interests
shall be the greater of (i) the maximum liquidation value of such
Preferred Equity Interests or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Equity
Interests.
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. As
provided in Appendix A hereto, the aggregate principal amount of Senior Notes
which may be authenticated and delivered under this Indenture is $250,000,000
and the aggregate gross proceeds of Senior Discount Notes which may be
authenticated and delivered under this Indenture is
45
$200,000,000. All Senior Notes, on the one hand, and all Senior Discount Notes,
on the other hand, shall be substantially identical in all respects other than
issue prices, issuance dates and denominations. The Securities may be issued in
one or more series; provided, however, that (i) any Securities issued with
original issue discount ("OID") for Federal income tax purposes shall not be
issued as part of the same series as any Securities that are issued with a
different amount of OID or are not issued with OID and (ii) Senior Notes and
Senior Discount Notes may not be part of the same series.
Subject to Section 2.03, the Trustee shall authenticate Senior
Notes for original issue on the Issue Date in the aggregate principal amount of
$170,000,000 (the "Original Senior Notes") and Senior Discount Notes for
original issue on the Issue Date in the aggregate principal amount at maturity
of $275,000,000 (approximately $175,021,000 gross proceeds) (the "Original
Senior Discount Notes" and, together with the Original Senior Notes, the
"Original Securities"). With respect to any Securities issued after the Issue
Date (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, Original Securities pursuant to
Section 2.07, 2.09 or 3.06 or Appendix A), there shall be established in or
pursuant to a resolution of the Governing Authority, and subject to Section
2.03, set forth, or determined in the manner provided in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of such Securities:
(1) whether such Securities shall be issued as part of a new
or existing series of Securities and the title of such Securities
(which shall distinguish the Securities of the series from Securities
of any other series);
(2) the aggregate principal amount, in the case of the Senior
Notes, or principal amount at maturity, in the case of the Senior
Discount Notes, of such Securities that may be authenticated and
delivered under this Indenture, which shall be in an aggregate
principal amount not to exceed $80,000,000 in the case of the Senior
Notes and a principal amount at maturity
46
aggregating no more than $24,979,000 gross proceeds in the case of the
Senior Discount Notes (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the same series pursuant to Section 2.07,
2.09 or 3.06 or Appendix A and except for Securities which, pursuant
to Section 2.03, are deemed never to have been authenticated and
delivered hereunder);
(3) the issue price and issuance date of such Securities,
including the date from which interest on such Securities shall accrue
or accrete, as applicable;
(4) if applicable, that such Securities shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the respective depositories for such Global Securities, the
form of any legend or legends that shall be borne by any such Global
Security in addition to or in lieu of that set forth in Exhibit 1 to
Appendix A and any circumstances in addition to or in lieu of those set
forth in Section 2.3 or 2.4 of Appendix A in which any such Global
Security may be exchanged in whole or in part for Securities
registered, or any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
depository for such Global Security or a nominee thereof; and
(5) if applicable, that such Securities shall not be issued in
the form of Initial Securities subject to Appendix A, but shall be
issued in the form of Private Exchange Securities or Exchange
Securities as set forth in Exhibit A.
If any of the terms of any series are established by action
taken pursuant to a resolution of the Governing Authority, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of each of the Company and BCC and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the trust indenture
supplemental hereto setting forth the terms of the series.
47
SECTION 2.02. Form and Dating. Provisions relating to the
Initial Securities of each series are set forth in Appendix A, which is hereby
incorporated in and expressly made part of this Indenture. The Initial
Securities of each series and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit 1 to Appendix A which is hereby
incorporated in and expressly made a part of this Indenture. The Private
Exchange Securities and the Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities of
each series may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company or BCC is subject, if any, or
usage, provided that any such notation, legend or endorsement is in a form
reasonably acceptable to the Company and BCC. Each Security shall be dated the
date of its authentication. The terms of the Securities of each series set forth
in Exhibit 1 to Appendix A and Exhibit A are part of the terms of this
Indenture.
SECTION 2.03. Execution and Authentication. Two Officers shall
sign the Securities for the Company and BCC by manual or facsimile signature.
Each of the Company's and BCC's seal shall be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
At any time and from time to time after the execution and
delivery of this Indenture, the Company and BCC may deliver Securities of any
series executed by the Company and BCC to the Trustee for authentication,
together with a written order of the Company and BCC in the form of an Officers'
Certificate for the authentication and delivery of such Securities, and the
Trustee in accordance with such written order of the Company and BCC shall
authenticate and deliver such Securities.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of
48
authentication on the Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company and BCC to authenticate the Securities. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. The Company and BCC
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company and BCC may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company and BCC shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company and BCC shall notify the Trustee of the name and address of any such
agent. If the Company and BCC fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company, BCC or any of their respective
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Company and BCC initially appoint the Trustee as Registrar
and Paying Agent in connection with the Securities.
SECTION 2.05. Paying Agent To Hold Money in Trust. On or prior
to each due date of the principal or
49
Accreted Value, as applicable, and interest on any Security, the Company and BCC
shall deposit with the Paying Agent a sum sufficient to pay such principal or
Accreted Value, as applicable, and interest so becoming due. The Company and BCC
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment of principal or
Accreted Value, as applicable, of or interest on the Securities and shall notify
the Trustee of any default by the Company and BCC in making any such payment. If
the Company, BCC or a Wholly Owned Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company and BCC at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.06. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is
not the Registrar, the Company and BCC shall furnish to the Trustee, in writing
at least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company and BCC shall
issue and the Trustee shall authenticate a replacement Security if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee, the Company or BCC, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company, BCC and the Trustee to protect the
Company, BCC, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss which any of them may suffer if a Security is replaced. The
Company, BCC and the Trustee may
50
charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company and BCC.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 10.06, a Security does not
cease to be outstanding because the Company, BCC or an Affiliate of the Company
or BCC holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee, the Company and BCC receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal in the case of the Senior Notes or Accreted
Value in the case of the Senior Discount Notes and interest payable on that date
with respect to the Securities (or portions thereof) to be redeemed or maturing,
as the case may be, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue or
accrete, as applicable.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company and BCC may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company and BCC consider appropriate for temporary Securities. Without
unreasonable delay, the Company and BCC shall prepare and the Trustee shall
authenticate definitive Securities and deliver them in exchange for temporary
Securities.
SECTION 2.10. Cancelation. The Company and BCC at any time may
deliver Securities to the Trustee for cancelation. The Registrar and the Paying
Agent shall
51
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel (subject
to the record retention requirements of the Exchange Act) all Securities
surrendered for registration of transfer, exchange, payment or cancelation and
deliver canceled Securities to the Company and BCC upon a written direction of
the Company and BCC. Except as expressly permitted herein, the Company and BCC
may not issue new Securities to replace Securities they have redeemed, paid or
delivered to the Trustee for cancelation.
SECTION 2.11. Defaulted Interest. If the Company and BCC
default in a payment of interest on the Securities, the Company and BCC shall
pay the defaulted interest (plus interest on such defaulted interest at the rate
borne by the Securities to the extent lawful) in any lawful manner. The Company
and BCC may pay the defaulted interest to the persons who are Securityholders on
a subsequent special record date. The Company and BCC shall fix or cause to be
fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail to each Securityholder a
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company and BCC 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, however, that none of the Company, BCC or the Trustee
shall have any responsibility for any defect in the "CUSIP" number that appears
on any Security, check, advice of payment or redemption notice, and 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.
ARTICLE III
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Redemption
SECTION 3.01. Notices to Trustee. If the Company and BCC elect
to redeem Securities pursuant to paragraph 5(a) of the Securities or are
required to redeem Securities pursuant to paragraph 5(b) of the Securities, they
shall notify the Trustee in writing of the redemption date, the principal amount
of Senior Notes or principal amount at maturity of Senior Discount Notes, as
applicable, to be redeemed and that such redemption is being made pursuant to
paragraph 5(a) or 5(b), as applicable, of the Securities.
The Company and BCC shall give each notice to the Trustee
provided for in this Section at least 45 days before the redemption date, or if
the Company and BCC are required to redeem Securities pursuant to paragraph
5(b), promptly after the occurrence of the event requiring such redemption
unless the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Company and BCC to the effect that such redemption will comply with the
conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal amount of Senior Notes or Accreted Value of Senior Discount Notes, as
applicable, in each case, that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least
53
30 days but not more than 60 days before a date for redemption of Securities,
the Company and BCC shall mail a notice of redemption by first-class mail to
each Holder of Securities to be redeemed.
The notice shall identify the Securities (or portion thereof)
to be redeemed and shall state (including CUSIP numbers, if any):
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, or if a Security is to be redeemed in part only, the
identification and principal amounts or Accreted Value, as applicable,
of the particular Securities (or portion thereof) to be redeemed;
(6) that, unless the Company and BCC default in making such
redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue or accrete, as applicable, on and
after the redemption date; and
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's and BCC's written request, the Trustee shall
give the notice of redemption in the Company's and BCC's name and at the
Company's and BCC's expense. In such event, the Company and BCC shall provide
the Trustee with the information required by this Section at least 45 days
before the redemption date, or if the Company and BCC are required to redeem
Securities pursuant to paragraph 5(b), promptly after the occurrence of the
event requiring such redemption.
54
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date that is on or prior to
the date of redemption). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company and BCC shall deposit with the Paying Agent (or, if
the Company, BCC or a Wholly Owned Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date that is
on or prior to the date of redemption) on all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption that
have been delivered by the Company and BCC to the Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company and BCC shall execute and the
Trustee shall authenticate for the Holder (at the Company's and BCC's expense) a
new Security equal in principal amount in the case of the Senior Notes or
Accreted Value in the case of the Senior Discount Notes to the unredeemed
portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company and BCC shall
promptly pay the principal or Accreted Value, as applicable, of and interest on
the Securities in immediately available funds on the dates and in the manner
provided in the Securities and in this Indenture. Principal or Accreted Value,
as applicable, and interest shall be
55
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay all principal or
Accreted Value, as applicable, and interest then due.
The Company and BCC shall pay interest on overdue principal or
Accreted Value, as applicable, at the rate specified therefor in the Securities,
and it shall pay interest on overdue installments of interest at the rate borne
by the Securities to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
and BCC may not be required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC
(but only if the SEC accepts such filings) and provide the Trustee and Holders
of the Securities with such annual reports and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act
applicable to a U.S. corporation subject to such sections, such information,
documents and other reports to be so filed and provided at the times specified
for the filing of such information, documents and reports under such sections.
The Company and BCC shall also comply with the provisions of TIA Section 314(a).
Notwithstanding the foregoing, such reporting requirements
shall be deemed satisfied (x) prior to April 10, 1999, if the Company delivers
to the Trustee and the Holders of the Securities on or prior to such date copies
of the audited consolidated financial statements of the Company for the
three-year period ended December 31, 1998 and (y) prior to May 20, 1999, by
filing with the SEC and delivering to the Trustee and the holders of the
Securities on or prior to such date a registration statement under the
Securities Act that contains the information that would be required in a Form
10-K for the Company for the year ended December 31, 1998, and a Form 10-Q for
the Company for the quarter ended March 31, 1999, and any Form 8-K required
under Section 13 or 15(d) of the Exchange Act.
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, Incur any Indebtedness unless, after giving effect to the Incurrence
on a pro forma basis (i) the Company's Leverage Ratio would
56
not exceed 8.0 to 1.0 or (ii) such Indebtedness is Permitted Indebtedness.
(b) Permitted Indebtedness is defined to include
any and all of the following:
(i) the Original Securities (and any Private
Exchange Securities or Exchange Securities issued in
exchange therefor);
(ii) Indebtedness outstanding on the Funding Date;
(iii) Indebtedness under the New Credit Facility in an
aggregate principal amount outstanding or available at any one time not
to exceed $875.0 million, which amount shall be permanently reduced by
the amount of Net Available Proceeds used to Repay Indebtedness under
the New Credit Facility to the extent such Net Available Proceeds are
not intended to be subsequently reinvested in replacements,
improvements or additions to existing or new Properties used or usable
in a Domestic Telecommunications Business or used for the permanent
repayment or reduction of other Indebtedness, pursuant to Section 4.07
(except at any time after the Company and BCC have made an Offer to
Purchase in accordance with Section 4.07, any Net Available Proceeds
remaining after such Offer to Purchase shall only reduce such amount to
the extent such remaining Net Available Proceeds are used to
permanently Repay Indebtedness under the New Credit Facility);
(iv) Permitted Refinancing Indebtedness Incurred in respect of
Indebtedness Incurred pursuant to Section 4.03(a)(i) or Section 4.03(b)
(i), (ii), (ix) and (x);
(v) Indebtedness of the Company owing to and held by a
Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owing
to and held by the Company or any other Restricted Subsidiary;
provided, however, that any event that results in any such Restricted
Subsidiary holding such Indebtedness ceasing to be a Restricted
Subsidiary, or any subsequent transfer of any such Indebtedness (except
to the Company or a Restricted Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness by
57
the issuer thereof;
(vi) Indebtedness under Interest Rate Agreements entered into
for the purpose of limiting risk in the ordinary course of the
financial management of the Company or any of its Restricted
Subsidiaries and not for speculative purposes; provided, however, that
the obligations under such agreements are related to payment
obligations on Indebtedness that was otherwise permitted to be Incurred
by the terms of this Indenture at the time it was Incurred;
(vii) Indebtedness in connection with one or more standby
letters of credit or performance bonds issued in the ordinary course of
business or pursuant to self-insurance obligations (including, but not
limited to, workers' compensation) and, in each case, not in connection
with the borrowing of money or the obtaining of advances or credit
(other than the extension of credit represented by the issuance for the
account of the Company or any of its Restricted Subsidiaries of such
letter of credit or performance bond itself);
(viii) Indebtedness not otherwise permitted under this
Section 4.03 in an amount outstanding at any time during the period
from the beginning of the fiscal quarter during which the Issue Date
occurs to the end of the sixth fiscal quarter after the quarter during
which the Issue Date occurs (the "First Six Fiscal Quarters") not to
exceed $35.0 million and at all times after the First Six Fiscal
Quarters an amount outstanding at any time not to exceed $25.0 million;
provided that any Indebtedness Incurred under this clause (viii) shall
cease to be deemed Incurred or outstanding for purposes of this clause
(viii) but shall be deemed Incurred for purposes of Section 4.03(a)(i)
from and after the first date on which the Company could have Incurred
such Indebtedness under Section 4.03(a)(i) without reliance upon this
clause (viii);
(ix) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries consisting of Capitalized Lease Obligations or
Purchase Money Indebtedness for Property used or to be used in
connection with a Domestic Telecommunications Business;
58
provided that (A) the aggregate principal amount of such Indebtedness
(exclusive of the interest portion thereof and the reasonable costs of
financing) does not exceed the lesser of the Fair Market Value or the
purchase price and related costs of design, development, acquisition,
construction or improvement of such Property at the time of such
Incurrence and (B) the aggregate principal amount of all Indebtedness
Incurred and then outstanding pursuant to this clause (ix) (together
with all Permitted Refinancing Indebtedness Incurred in respect of
Indebtedness previously Incurred pursuant to this clause (ix)) does
not exceed $25.0 million;
(x) Acquired Indebtedness; provided that after giving effect
to the underlying acquisition, merger or consolidation, either (A) the
Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio referred to in Section
4.03(a)(i) or (B) such Leverage Ratio is no greater immediately
following such acquisition, merger or consolidation than the Leverage
Ratio immediately prior to such acquisition, merger or consolidation;
(xi) other Indebtedness in an amount not greater than twice
the aggregate amount of cash Equity Interest Sale Proceeds; provided
that such Equity Interest Sale Proceeds have not, in the discretion of
the Company, been treated as Equity Interest Sale Proceeds for purposes
of Section 4.04(a)(iii)(B); provided further that such Indebtedness
shall have been Incurred at substantially the same time as such cash
Equity Interest Sale Proceeds were received; and
(xii) Indebtedness arising from agreements providing for
indemnification or adjustment of purchase price or from guarantees
securing any obligations of the Company or any Restricted Subsidiary
pursuant to such agreements, Incurred or assumed in connection with the
disposition of any Property or Restricted Subsidiary of the Company,
other than guarantees or similar credit support by the Company or any
Restricted Subsidiary of Indebtedness incurred by any Person acquiring
all or any portion of such Property or Restricted Subsidiary for the
purpose of financing such
59
acquisition; provided that the maximum aggregate liability in respect
of all such Indebtedness permitted pursuant to this clause (xii) shall
at no time exceed the net proceeds actually received from the sale of
such Property or Restricted Subsidiary.
(c) For purposes of determining compliance with
this Section 4.03,
(i) in the event that an item of Indebtedness (including
Indebtedness issued to banks or other lenders) meets the criteria of
more than one of the categories of Indebtedness described under Section
4.03(a)(i) and Section 4.03(b), the Company, in its
sole discretion, will classify such item of Indebtedness as of the time
of the Incurrence thereof (subject to the proviso in Section
4.03(b)(viii)) and will only be required to include the amount and type
of such Permitted Indebtedness in one of the above clauses;
(ii) an item of Indebtedness (including Indebtedness issued to
banks or other lenders) may be divided and classified in more than one
of the types of Indebtedness described above; and
(iii) the accrual of interest, accretion of Accreted Value and
payment of interest in the form of additional subordinated Indebtedness
will not be deemed to be an Incurrence of Indebtedness for purposes of
this Section 4.03.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not make, and shall not permit any Restricted Subsidiary to make,
any Restricted Payment if at the time of, and after giving effect to, such
proposed Restricted Payment, (i) a Default or Event of Default shall have
occurred and be continuing, (ii) the Company could not Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.03(a)(i) or (iii) the aggregate
amount of such Restricted Payment and (subject to Section 4.03(c)) all other
Restricted Payments made since the Issue Date (the amount of any Restricted
Payment, if made other than in cash, to be based upon Fair Market Value) would
exceed an amount equal to the sum of:
60
(A) the result of (1) Cumulative EBITDA minus (2) the product
of 1.2 and Cumulative Interest Expense, plus
(B) Equity Interest Sale Proceeds, plus
(C) the amount by which Indebtedness of the Company (other
than subordinated Indebtedness) or any Restricted Subsidiary is reduced
on the Company's consolidated balance sheet upon the conversion or
exchange (other than by a Subsidiary of the Company) subsequent to the
Issue Date of any Indebtedness of the Company or any Restricted
Subsidiary convertible or exchangeable for Equity Interests (other than
Disqualified Equity Interests) in the Company (less the amount of any
cash or other Property distributed by the Company or any Restricted
Subsidiary upon conversion or exchange), plus
(D) an amount equal to the deemed net reduction in Investments
made by the Company and its Restricted Subsidiaries subsequent to the
Issue Date in any Person resulting from
(1) dividends, repayment of loans or advances, or
other transfers or distributions of Property (unless such
transfers or distributions are otherwise included in the
calculation of EBITDA for purposes of Section
4.04(a)(iii)(A)(1)), in each case to the Company or any
Restricted Subsidiary from any Person or
(2) the redesignation of any Unrestricted
Subsidiary as a Restricted Subsidiary,
not to exceed, in the case of (1) or (2), the amount of such
Investments previously made by the Company and its Restricted
Subsidiaries in such Person or such Unrestricted Subsidiary, as the
case may be, which were treated as Restricted Payments.
(b) Notwithstanding the foregoing, the Company or
any Restricted Subsidiary (as the case may be) may:
61
(i) pay dividends on or make distributions in respect of
Equity Interests in the Company within 60 days of the declaration
thereof if, on the declaration date, such dividends or distributions
could have been paid in compliance with the foregoing limitation;
(ii) redeem, repurchase, defease, acquire or retire for value,
any Indebtedness subordinate (whether pursuant to its terms or by
operation of law) in right of payment to the Securities with the
proceeds of or in exchange for any Permitted Refinancing Indebtedness;
(iii) acquire, redeem or retire Equity Interests in the
Company or Indebtedness of the Company subordinate (whether pursuant to
its terms or by operation of law) in right of payment to the Securities
in exchange for, or in connection with a substantially concurrent
issuance (other than to a Subsidiary of the Company or an employee
stock ownership plan or trust established by the Company or any such
Subsidiary for the benefit of their employees) of, Equity Interests in
the Company (other than Disqualified Equity Interests) or in exchange
for cash contributions to the equity capital of the Company;
(iv) with respect to any taxable year or portion thereof that
the Company is a Pass-Through Entity, pay any dividend or other
distribution on Equity Interests in the Company in an amount not to
exceed the aggregate amount necessary to permit each Relevant Taxpayer
to pay the Tax Liability of such Relevant Taxpayer with respect to such
taxable year;
(v) pay any dividend or other distribution on Equity Interests
in the Company or make loans to the Parent, in each case to allow BCI
Management L.P. to acquire, redeem or retire Equity Interests in BCI
Management, L.P. held directly or indirectly by a present or former
employee of the Company or any Restricted Subsidiary (or such
employee's estate, as the case may be) upon such employee's death,
disability, retirement or termination of employment with the Company
and any Restricted Subsidiary in an aggregate amount not to exceed $5.0
million per year
62
(the "Base Amount"); provided that, to the extent not all the Base
Amount is utilized to pay dividends in such year, the unused portion of
such Base Amount may be carried forward to and be deemed part of the
Base Amount for the immediately subsequent year; provided further that
the Base Amount may not exceed $10.0 million in any year;
(vi) make Investments in Persons (including Unrestricted
Subsidiaries) the primary businesses of which are Cable Businesses,
Cable Programming Businesses or Related Businesses (other than
Investments in Equity Interests in the Company or Tele-Communications,
Inc.) in an aggregate amount (based on the amount actually invested)
for all such Investments made pursuant to this clause (vi) not to
exceed the sum of
(A) $20.0 million,
(B) an amount equal to the deemed net reduction
in Investments made by the Company and its Restricted
Subsidiaries subsequent to the Issue Date in any Person resulting
from payment of dividends, repayment of loans or advances, or
other transfers or distributions of Property to the Company or
any Restricted Subsidiary from any Person (but only to the extent
such net reduction has not been utilized to increase the amount
of Restricted Payments permissible pursuant to Section
4.04(a)(iii)(A) or (iii)(D), and not to exceed, in the case of
this clause (vi)(B), the amount of such Investments previously
made by the Company and its Restricted Subsidiaries in such
Person which were made in reliance on this clause (vi) and
(C) Equity Interest Sale Proceeds to the extent such
Proceeds have not, in the discretion of the Company, been treated
as Equity Interest Sale Proceeds for purposes of Section
4.04(a)(iii)(B);
(vii) pay dividends to the Parent, the proceeds of which are
or will be used to pay, or reimburse the
63
Parent for the payment of, management fees and monitoring fees of the
Parent pursuant to and in amounts provided for in the Partnership
Agreement; provided that such management fees may be increased on an
annual basis to up to 5.0% of consolidated gross revenues of the
Company to the extent necessary to cover the pro rata reimbursement of
operating expenses (including pro rata amounts of salaries of Company
Employees and overhead expenses) attributable to the Company; provided
further that if at the time of such dividend a Default or an Event of
Default shall have occurred and be continuing (or would result
therefrom) such dividend shall be limited to an amount not to exceed
the portion of the management fees that represents a pro rata
reimbursement of operating expenses attributable to the Company;
(viii) declare and pay scheduled dividends (not constituting a
return on capital) to holders of any Disqualified Equity Interests of
the Company or any of its Restricted Subsidiaries subject to and
Incurred in accordance with Section 4.03;
(ix) make Investments with Excluded Contributions; provided
that such Excluded Contribution was received by the Company at
substantially the same time as such Investment was made;
(x) make Investments in connection with the AT&T Joint Venture
in an aggregate amount not to exceed the lesser of 66-2/3% of the
amount of any cash equity contributions made by AT&T or its Affiliates
(other than the Company and its Affiliates) in the AT&T Joint Venture
and $25.0 million;
(xi) to the extent Investments in connection with the AT&T
Joint Venture are made with Excluded Contributions in accordance with
Section 4.04(b)(ix), make additional Investments in the AT&T Joint
Venture in an aggregate amount not to exceed the lesser of 50% of the
amount of such Excluded Contributions and $20.0 million; provided that
each such additional Investment is made at substantially the same time
as such Investment pursuant to Section 4.04(b)(ix); provided further
that such Investment shall not be made
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at the same time or substantially the same time as the Company makes a
distribution (other than a Tax Distribution) with respect to its
Equity Interests;
(xii) acquire Equity Interests of any Person who beneficially
owns, directly or indirectly, 50% or more of the total voting power of
the Voting Equity Interests of the Company for the sole purpose of
contributing the acquired Equity Interests to the Company's 401(k)
Plan; provided that the contribution of the acquired Equity Interests
is in the ordinary course and in lieu of cash contributions the Company
would otherwise make to its 401(k) Plan; and
(xiii) make other Restricted Payments in an aggregate
amount not to exceed $15.0 million.
(c) Any payments made pursuant to Section 4.04(b)(ii), (iii),
(iv), (vii), (viii), (ix), (xi) and (xii) shall be excluded from the calculation
of the aggregate amount of Restricted Payments made after the Issue Date;
provided, however, that the proceeds from the issuance of Equity Interests
pursuant to Section 4.04(b)(iii) shall not constitute Equity Interest Sale
Proceeds to the extent such proceeds are used in the manner set forth in Section
4.04(b)(iii) for purposes of Section 4.04(a)(iii)(B).
SECTION 4.05. Limitation on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary that has Guaranteed (a) any
Indebtedness of the Company or (b) any Indebtedness of a Restricted Subsidiary
that has Guaranteed any Indebtedness of the Company to, directly or indirectly,
Incur or suffer to exist, any Lien (other than Permitted Liens) upon any of its
Property, whether now owned or hereafter acquired, or any interest therein or
any income or profits therefrom, unless it has made or will make effective
provision whereby the Securities will be secured by such Lien equally and
ratably with all other Indebtedness of the Company or such Restricted Subsidiary
secured by such Lien for so long as any such other Indebtedness of the Company
or such Restricted Subsidiary shall be so secured; provided, however, that no
Lien may be granted with respect to Indebtedness of the Company that is
subordinated to the Securities.
SECTION 4.06. Limitation on Issuance of
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Guarantees by Restricted Subsidiaries. (a) The Company shall not permit any
Restricted Subsidiary, directly or indirectly, to Guarantee any Indebtedness of
the Company which is pari passu with or subordinate in right of payment to the
Securities ("Guaranteed Indebtedness"), unless (a) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee (a "Subsidiary Guarantee") of payment of the
Securities by such Restricted Subsidiary and (b) until one year after all the
Securities have been paid in full in cash, such Restricted Subsidiary waives and
will not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Subsidiary Guarantee; provided that this
Section 4.06(a) shall not be applicable to any Guarantee of any Restricted
Subsidiary that (i) existed at the time such Person became a Restricted
Subsidiary and was not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or (ii) guarantees the payment of any
principal, interest, penalties, fees, indemnification obligations, reimbursement
obligations (including, without limitation, reimbursement obligations with
respect to letters of credit and banker's acceptances), damages or other
liabilities of the Company or any Restricted Subsidiary under the New Credit
Facility. If the Guaranteed Indebtedness is (A) pari passu with, or subordinated
to, the Subsidiary Guarantee or (B) subordinated to the Securities, then the
Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Securities.
(b) Notwithstanding the foregoing, any Subsidiary Guarantee by
a Restricted Subsidiary may provide by its terms that it shall be automatically
and unconditionally released and discharged upon (a) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the Company's
and each Restricted Subsidiary's Equity Interests in, or all or substantially
all the assets of, such Restricted Subsidiary (which sale, exchange or transfer
is not prohibited by this Indenture) or (b) the release or discharge of the
Guarantee which resulted in the creation of such Subsidiary Guarantee, except a
discharge or release by
66
or as a result of payment under such Guarantee.
SECTION 4.07. Limitation on Asset Dispositions. (a) The
Company may not, and may not permit any Restricted Subsidiary to, make any Asset
Disposition unless:
(i) the Company or the Restricted Subsidiary, as the case may
be, receives consideration for such disposition at least equal to the
Fair Market Value of the Property sold or disposed of as determined by
the Governing Authority in good faith and evidenced by a Resolution
filed with the Trustee;
(ii) (A) at least 75% of the consideration for such
disposition consists of
(1) cash or Temporary Cash Investments,
(2) the assumption of Indebtedness of the Company or
any Restricted Subsidiary (other than Indebtedness
that is subordinated to the Securities) and release
of the Company and all Restricted Subsidiaries from
all liability on the Indebtedness assumed or
(3) any notes, obligations or other securities
received by the Company or such Restricted Subsidiary
from such transferee that are converted by the
Company or such Restricted Subsidiary into cash (to
the extent of the cash received) within 180 days
following the closing of such Asset Disposition or
(B) the consideration paid to the Company or such
Restricted Subsidiary is in the form of Property (including
franchises and licenses required to own or operate such
Property) which is determined in good faith by the Governing
Authority, as evidenced by a Resolution, to be used or usable
in a Domestic Telecommunications Business; and
(iii) the Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Disposition complies with Section
4.07(a)(i) and (ii).
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(b) The Net Available Proceeds (or any portion thereof) from
Asset Dispositions may be applied by the Company or a Restricted Subsidiary, to
the extent the Company or such Restricted Subsidiary elects (or is required by
the terms of any Indebtedness):
(i) to the permanent repayment or reduction of Indebtedness of
the Company (other than subordinated Indebtedness) or a Restricted
Subsidiary then outstanding (other than Indebtedness owed to the
Company or any Affiliate of the Company); or
(ii) to reinvest in replacements, improvements or additions to
existing or new Properties (including franchises and licenses required
to own or operate such Properties) used or usable in a Domestic
Telecommunications Business (including by means of an investment by a
Restricted Subsidiary with Net Available Proceeds received by the
Company or another Restricted Subsidiary).
Pending the final application of any such Net Available Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Available Proceeds in
Temporary Cash Investments.
(c) Any Net Available Proceeds from an Asset Disposition not
applied in accordance with the Section 4.07(b) within 365 days from the date of
the receipt of such Net Available Proceeds shall constitute "Excess Proceeds".
When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
will be required to make an Offer to Purchase with such Excess Proceeds on a pro
rata basis according to principal amount (or, in the case of Indebtedness issued
at a discount, the then-Accreted Value) for
(i) outstanding Securities at a price in cash equal to, in the
case of the Senior Notes, 100% of the principal amount thereof and, in
the case of the Senior Discount Notes, 100% of the Accreted Value
thereof on the purchase date plus, in each case, accrued and unpaid
interest, if any, thereon (subject to the right
68
of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date) in accordance with the
procedures (including prorating in the event of oversubscription) set
forth in this Indenture and
(ii) any other Indebtedness of the Company that is pari passu
with the Securities, at a price no greater than 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the
purchase date (or 100% of the then Accreted Value plus accrued and
unpaid interest, if any, to the purchase date in the case of original
issue discount Indebtedness), to the extent, in the case of this
Section 4.07(c)(ii), required under the terms thereof (other than
Indebtedness owed to the Company or any Affiliate of the Company).
Any remaining Excess Proceeds may be applied to any use as determined by the
Company which is not otherwise prohibited by this Indenture, and the amount of
Excess Proceeds shall be reset to zero.
SECTION 4.08. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective, or enter into any agreement with any Person
that would cause to become effective, any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to
(i) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Equity Interests, or pay any
Indebtedness or other obligation owed, to the Company or any other
Restricted Subsidiary,
(ii) make any loans or advances to the Company or any other
Restricted Subsidiary or
(iii) transfer any of its Property to the Company or any other
Restricted Subsidiary.
(b) Such limitation will not apply
(i) with respect to Section 4.08(a)(i), (ii) and
69
(iii), to encumbrances and restrictions
(A) in existence on the Issue Date under or by reason
of any agreements in effect on the Issue Date, including under
this Indenture and the Securities,
(B) in existence under or by reason of the New Credit
Facility; provided that such restrictions or encumbrances are
no less favorable to the Holders of the Securities than those
restrictions or encumbrances pursuant to the New Credit
Facility as in effect on the Funding Date and as described in
the Offering Memorandum; provided further, however, that the
provisions of the New Credit Facility permit distributions to
the Company for the purpose of, and in an amount sufficient to
fund, the payment of principal due at Stated Maturity and
interest in respect of the Securities (provided, in either
case, that such payment is due or to become due within 30 days
from the date of such distribution) at a time when there does
not exist an event which after notice or passage of time or
both would permit the lenders under the New Credit Facility to
declare all amounts thereunder due and payable;
(C) relating to Indebtedness of a Restricted
Subsidiary and existing at such Restricted Subsidiary at the
time it became a Restricted Subsidiary if either (1) such
encumbrance or restriction was not created in connection with
or in anticipation of the transaction or series of related
transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company
or a Restricted Subsidiary or (2) such encumbrance or
restriction was created in connection with the refinancing of
preexisting Indebtedness in connection with or in anticipation
of the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company or a Restricted
Subsidiary, and the new Indebtedness satisfies the
requirements
70
contained in the definition of "Permitted Refinancing
Indebtedness", and such encumbrance or restriction relates
only to the Property previously subject to an encumbrance or
restriction under the preexisting Indebtedness and such
encumbrance or restriction is no more restrictive than was its
predecessor,
(D) which result from the renewal, refinancing,
extension or amendment of an agreement referred to in Section
4.08(b)(i)(A), (B) and (C) and in Section 4.08(b)(ii)(A) and
(B) below, provided such encumbrance or restriction is no more
restrictive to such Restricted Subsidiary and is not
materially less favorable to the Holders of Securities than
those under or pursuant to the agreement so renewed,
refinanced, extended or amended, and
(E) customary encumbrances or restrictions on
distributions of cash or other deposits or customary net worth
maintenance covenants imposed by customers under contracts
entered into in the ordinary course of business,
and (ii) with respect to Section 4.08(a)(iii) only, to
(A) any encumbrance or restriction relating to
Indebtedness that is permitted to be Incurred and secured
pursuant to Sections 4.03 and 4.05 that limits the right of
the debtor to dispose of the Property securing such
Indebtedness,
(B) any encumbrance or restriction in connection with
an acquisition of Property, so long as such encumbrance or
restriction relates solely to the Property so acquired (and
any improvements thereto) and was not created in connection
with or in anticipation of such acquisition,
(C) customary provisions restricting subletting or
assignment of leases and customary provisions in other
agreements that restrict assignment of such agreements or
rights
71
thereunder,
(D) customary restrictions contained in asset sale
agreements limiting the transfer of such assets pending the
closing of such sale or
(E) customary restrictions contained in cable
television franchise agreements limiting the transfer of the
franchises granted thereby.
SECTION 4.09. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, conduct any business or enter into or suffer to exist
any transaction or series of transactions (including the purchase, sale,
transfer, lease or exchange of any Property, the rendering of any service or the
modification, renewal or extension of any existing agreement with Affiliates of
the Company) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless the terms of such Affiliate Transaction are
(i) (A) with respect to an Affiliate Transaction involving, or
reasonably expected to involve, aggregate payments or value in excess
of $1.0 million, set forth in writing, and (B) no less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those
that could be obtained at the time of such Affiliate Transaction for a
similar transaction in arm's-length dealings with a Person who is not
such an Affiliate,
(ii) with respect to an Affiliate Transaction involving, or
reasonably expected to involve, aggregate payments or value in excess
of $10.0 million, the Governing Authority approves such Affiliate
Transaction and, in its good faith judgment, believes that such
Affiliate Transaction complies with Section 4.09(a)(i)(B) as evidenced
by a Resolution and
(iii) with respect to an Affiliate Transaction involving, or
reasonably expected to involve, aggregate payments in excess of $50.0
million, the Company obtains an opinion letter from an Independent
Appraiser to the effect that the consideration to be paid or
72
received in connection with such Affiliate Transaction is fair, from a
financial point of view to the Company and its Restricted Subsidiaries.
(b) Notwithstanding the foregoing limitation, the Company or
any of its Restricted Subsidiaries may enter into or suffer to exist the
following:
(i) any transaction pursuant to any contract in existence on
the Funding Date (including the repayment in full of the TCID Note and
the Assumed TCI Debt) or any renewal, amendment, extension or
replacement of such contract on terms that are in the aggregate no less
favorable to the Company and its Restricted Subsidiaries, including
contracts for the acquisition of cable television programming and
equipment; provided that as this clause (i) relates to the Partnership
Agreement, the Contribution Agreement, the New Supply Agreement, the
TCID Note and the Assumed TCI Debt, each such agreement, note or debt
in existence on the Funding Date shall be on terms that are no less
favorable to the Company and its Restricted Subsidiaries than as are
contemplated (including any changes to such terms) in the Offering
Memorandum; provided further that any material amendment, modification
or replacement or successor agreements to the New Supply Agreement
shall have been approved by the Governing Authority and a majority of
the disinterested limited partners of the Parent;
(ii) any Restricted Payment made in accordance with Section
4.04 or any Permitted Investment;
(iii) any transaction or series of transactions between the
Company and one or more of its Restricted Subsidiaries or between two
or more of its Restricted Subsidiaries;
(iv) the payment of reasonable compensation (including amounts
or Equity Interests (other than Disqualified Equity Interests) paid
pursuant to employee benefit plans) for the personal services of
officers, directors and employees of the Company or any of its
Restricted Subsidiaries;
73
(v) loans and advances to Company Employees (such loans to be
made either directly to such Company Employees or through the Parent,
the General Partner, Bresnan Communications, Inc. or BCI Management,
L.P.) or loans to BCI Management, L.P. (directly or indirectly through
the Parent, the General Partner or Bresnan Communications, Inc.), to
allow BCI Management, L.P. to acquire, redeem or retire Equity
Interests in BCI Management, L.P., held by Company Employees (or such
Company Employee's estate, as the case may be) upon such employee's
death, disability, retirement or termination of employment; provided
that such loans and advances do not exceed $5.0 million at any one time
outstanding;
(vi) customary indemnification payments to members of the
Governing Authority or officers of the Company, any Restricted
Subsidiary, the Parent, the General Partner or BCI Management L.P. for
liabilities incurred in connection with the rendering of services to
the Company; and
(vii) issuances of Equity Interests in the Company (other than
Disqualified Equity Interests or Preferred Equity Interests) in
connection with capital contributions.
(c) References, directly or indirectly, to any Person in
Section 4.09(b) is not intended to imply and should not be construed as implying
that any such Person is an Affiliate of the Company.
SECTION 4.10. Designation of Restricted and Unrestricted
Subsidiaries. (a) The Governing Authority may designate any Subsidiary of the
Company to be an Unrestricted Subsidiary if
(i) the Subsidiary to be so designated does not own any Equity
Interests or Indebtedness of, or own or hold any Lien on any Property
of, the Company or any other Restricted Subsidiary and
(ii) either (A) the Subsidiary to be so designated has total
assets of $1,000 or less, (B) the portion (proportionate to the
Company's Equity Interests in
74
such Subsidiary) of the Fair Market Value of such Subsidiary at the
time of such designation would be permitted as, and shall be deemed to
constitute, an Investment pursuant to Section 4.04, or (C) such
designation is effective immediately upon such entity becoming a
Subsidiary of the Company. Unless so designated as an Unrestricted
Subsidiary, any Person that becomes a Subsidiary of the Company will be
classified as a Restricted Subsidiary; provided, however, that such
Subsidiary shall not be designated a Restricted Subsidiary and shall be
automatically classified as an Unrestricted Subsidiary if either of the
requirements set forth in Section 4.10(b)(i) and (ii) will not be
satisfied after giving pro forma effect to such classification.
Except as provided in the first sentence of this Section 4.10(a), no Restricted
Subsidiary may be redesignated as an Unrestricted Subsidiary. Neither the
Company nor any Restricted Subsidiary shall at any time be directly or
indirectly liable for any Indebtedness that provides that the holder thereof may
(with the passage of time or notice or both) declare a default thereon or cause
the payment thereof to be accelerated or payable prior to its Stated Maturity
upon the occurrence of a default with respect to any Indebtedness, Lien or other
obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary). Upon designation of a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this
Section 4.10, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture in form satisfactory to the Trustee, be released from any
Guarantee previously made by such Restricted Subsidiary.
(b) The Governing Authority may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma
effect to such designation, (i) the Company could Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.03(a)(i) or the Company's Leverage
Ratio would be no greater immediately following such designation than the
Company's Leverage Ratio immediately preceding such designation and (ii) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom. In the case of the redesignation of
75
an Unrestricted Subsidiary (which was previously a Restricted Subsidiary) as a
Restricted Subsidiary, the Company shall be deemed to have a continuing
"Investment" in an Unrestricted Subsidiary equal to the amount (if positive)
equal to (a) the Company's "Investment" in such Unrestricted Subsidiary at the
time of such redesignation less (b) the portion (proportionate to the Company's
Equity Interests in such Unrestricted Subsidiary) of the Fair Market Value of
the net assets of such Unrestricted Subsidiary at the time of such
redesignation.
(c) Any such designation or redesignation by the Governing
Authority will be evidenced to the Trustee by filing with the Trustee a
Resolution giving effect to such designation or redesignation and an Officers'
Certificate (i) certifying that such designation or redesignation complies with
the foregoing provisions and (ii) giving the effective date of such designation
or redesignation, such filing with the Trustee to occur within 75 days after the
end of the fiscal quarter of the Company in which such designation or
redesignation is made (or, in the case of a designation or redesignation made
during the last fiscal quarter of the Company's fiscal year, within 120 days
after the end of such fiscal year).
(d) The Company shall at all times cause each of BCC and
Bresnan Telecommunications Company LLC to be a direct Wholly Owned Subsidiary.
SECTION 4.11. Limitation on Conduct of Business of BCC. BCC
shall not conduct any business or other activities, own any Property, enter into
agreements or Incur any Indebtedness or other liabilities, other than in
connection with serving as an issuer and obligor with respect to the Securities.
SECTION 4.12. Limitation on Conduct of Business of the Company
and BCC Prior to the Funding Date. Prior to the Funding Date, the Company and
BCC are prohibited from conducting any business or other activities, owning any
Property, entering into any agreements or Incurring any Indebtedness or
liabilities, other than in connection with the issuance of the Original
Securities or pursuant to and in accordance with the Escrow Agreement or the
Contribution Agreement, provided that no such action undertaken with
76
respect to the Contribution Agreement shall be effective or binding on the
Company and BCC prior to the Funding Date.
SECTION 4.13. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder of Securities shall have the right to require the
Company and BCC to repurchase all or any part (in a principal amount or Accreted
Value, as applicable, equal to $1,000 or an integral multiple thereof) of such
Holder's Securities pursuant to the offer described below (the "Change of
Control Offer") at a purchase price (the "Change of Control Purchase Price")
equal to 101% of the principal amount thereof, in the case of the Senior Notes,
and 101% of the Accreted Value thereof, in the case of the Senior Discount
Notes, in each case plus accrued and unpaid interest, if any, to the purchase
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
(b) Within 30 days following any Change of Control, the
Company and BCC shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send, by first-class mail, with a copy to
the Trustee, to each Holder of Securities, at such Holder's address appearing in
the Security Register, a notice stating: (A) that a Change of Control has
occurred and a Change of Control Offer is being made pursuant to this Section
4.13 and that all Securities timely tendered will be accepted for payment; (B)
the Change of Control Purchase Price and the purchase date, which shall be,
subject to any contrary requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"); (C) that any Security (or portion
thereof) accepted for payment (and duly paid on the Change of Control Payment
Date) pursuant to the Change of Control Offer shall cease to accrue or accrete
interest, as applicable, after the Change of Control Payment Date; (D) that any
Security (or portions thereof) not properly tendered will continue to accrue or
accrete interest, as applicable; (E) a description of the transaction or
transactions constituting the Change of Control; and (F) the procedures that
Holders of Securities must follow in order to tender their Securities (or
portions thereof) for payment and the procedures that Holders of
77
Securities must follow in order to withdraw an election to tender Securities (or
portions thereof) for payment.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company or its agent at the address specified in the notice at least three
Business Days prior to the Change of Control Payment Date. Holders shall be
entitled to withdraw their election if the Trustee or the Company receives not
later than one Business Day prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security that was delivered for purchase by
the Holder and a statement that such Holder is withdrawing its election to have
such Security purchased.
(d) On or prior to the Change of Control Payment Date, the
Company shall irrevocably deposit with the Trustee or with the Paying Agent (or,
if the Company or any of its Wholly Owned Subsidiaries is acting as the Paying
Agent, segregate and hold in trust) in cash an amount equal to the Change of
Control Purchase Price payable to the Holders entitled thereto, to be held for
payment in accordance with the provisions of this Section. On the Change of
Control Payment Date, the Company shall deliver to the Trustee the Securities or
portions thereof that have been properly tendered to and are to be accepted by
the Company for payment. The Trustee or the Paying Agent shall, on or promptly
after the Change of Control Payment Date, mail or deliver payment to each
tendering Holder of the Change of Control Purchase Price. In the event that the
aggregate Change of Control Purchase Price is less than the amount delivered by
the Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent,
as the case may be, shall deliver the excess to the Company immediately after
the Change of Control Payment Date.
(e) The Company and BCC will comply, to the extent applicable,
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws or regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of Securities
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations
78
conflict with the provisions of this Section, the Company and BCC will comply
with the applicable securities laws and regulations and will not be deemed to
have breached their obligations under this Section by virtue thereof.
(f) The Company and BCC shall not be required to make a Change
of Control Offer upon a Change of Control if a third-party makes the Change of
Control Offer in a manner, at the times and otherwise in compliance with all
requirements of this Section 4.13 applicable to a Change of Control made by the
Company and BCC and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer. Securities repurchased by either the Company
or BCC or such third party pursuant to a Change of Control Offer shall have the
status of Securities issued but not outstanding or shall be retired or canceled,
at the option of the Company and BCC.
SECTION 4.14. Compliance Certificate. The Company and BCC
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company, commencing with the fiscal year ended December 31, 1999, an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company and BCC they would normally
have knowledge of any Default by the Company or BCC and whether or not the
signers know of any Default or Event of Default that occurred during such
period. If they do, the certificate shall describe the Default, its status and
what action the Company and BCC are taking or propose to take with respect
thereto. The Company and BCC shall comply with TIA Section 314(a)(4).
SECTION 4.15. Applicability of Article IV; Investment Grade
Ratings. During any period of time that (a) the Securities have Investment Grade
Ratings from both Rating Agencies and (b) no Default or Event of Default has
occurred and is continuing under this Indenture, the Company and the Restricted
Subsidiaries will not be subject to the provisions of Section 4.03, 4.04, 4.07,
4.08, 4.09, 4.10(b)(i) (and Section 4.10(b)(i) as referred to in Section
4.10(a)) (collectively, the "Suspended Covenants"). In the event that the
Company and the Restricted Subsidiaries are not subject to the Suspended
Covenants for any period of time as a result of the preceding sentence and,
subsequently, one or both of the Rating Agencies withdraws
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its ratings or downgrades the ratings assigned to the Securities below the
required Investment Grade Ratings or a Default or Event of Default occurs and is
continuing, then the Company and the Restricted Subsidiaries will thereafter
again be subject to the Suspended Covenants and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal, downgrade, Default or Event of Default will be calculated in
accordance with the terms of Section 4.04 as though Section 4.04 had been in
effect during the entire period of time from the Issue Date.
SECTION 4.16.OID Certificate. The Company and BCC shall file
with the Trustee promptly after the end of each calendar year (a) a written
notice specifying the Accreted Value (including daily rates and accrual periods)
of outstanding Senior Discount Notes as of the end of such year and (ii) such
other specific information relating to such Accreted Value as may then be
relevant under the Internal Revenue Code.
SECTION 4.17. Further Instruments and Acts. Upon request of
the Trustee, the Company and BCC shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. When Company and BCC May Merge or Transfer
Assets. (a) Neither the Company nor BCC may consolidate with or merge with or
into any other Person (other than a merger of a Restricted Subsidiary (other
than BCC) into the Company), or convey, sell, transfer, lease or otherwise
dispose of all or substantially all of its Property (in one transaction or a
series of related transactions), unless:
(i) either the Company or BCC, as applicable, shall be the
surviving Person (the "Surviving Person"), or the Surviving Person (if
other than the Company or BCC, as applicable) formed by such
consolidation or
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into which the Company or BCC, as applicable, is merged or to which the
Property of the Company or BCC, as applicable, is transferred shall be,
in the case of BCC, a corporation, or in any other case, a corporation,
partnership or trust, organized and existing under the laws of the
United States or any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than the Company or BCC,
as applicable) shall expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or BCC, as applicable,
under the Securities and this Indenture, and the obligations under this
Indenture shall remain in full force and effect;
(iii) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all of the
Company's or BCC's Property, such Property shall have been transferred
as an entirety or virtually as an entirety to one or more Persons;
provided that all such transferees shall have jointly and severally
assumed, as the Surviving Person, the obligations of the Company or
BCC, as applicable, pursuant to clause (ii);
(iv) immediately before and immediately after giving effect to
such transaction, no Default or Event of Default shall have occurred
and be continuing; and
(v) immediately after giving effect to such transaction on a
pro forma basis (including, any Indebtedness Incurred or anticipated to
be Incurred in connection with such transaction or series of
transactions), (A) the Surviving Person would be able to Incur at least
$1.00 of additional Indebtedness pursuant Section 4.03(a)(i) or (B) the
Leverage Ratio for the Surviving Person would be no greater immediately
following such transaction than the Company's Leverage Ratio
immediately preceding such transaction.
(b) Upon the consolidation, merger or transfer of all or
substantially all of the assets of either the Company
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or BCC in accordance with Section 5.01(a), the successor corporation formed by
such a consolidation or into which the Company or BCC is merged or to which such
transfer is made shall succeed to, shall be substituted for and may exercise
every right and power of the Company or BCC, as applicable, under the Securities
and this Indenture, with the same effect as if such successor corporation had
been named as the Company or BCC, as applicable, herein. In the event of any
transaction (other than a lease) described and listed in Section 5.01 in which
the Company or BCC, as applicable, is not the Surviving Person, the Surviving
Person shall succeed to, be substituted for and may exercise every right and
power of the Company or BCC, as applicable, and the Company and BCC, as
applicable, shall be discharged from all obligations and covenants under the
Securities and this Indenture.
SECTION 5.02. Applicability of Article V; Investment Grade
Ratings. During any period of time that (a) the Securities have Investment Grade
Ratings from both Rating Agencies and (b) no Default or Event of Default has
occurred and is continuing under this Indenture, the Company and the Restricted
Subsidiaries will not be subject to Section 5.01(a)(v). In the event that the
Company and the Restricted Subsidiaries are not subject to Section 5.01(a)(v)
for any period of time as a result of the preceding sentence and, subsequently,
one or both of the Rating Agencies withdraws its ratings or downgrades the
ratings assigned to the Securities below the required Investment Grade Ratings
or a Default or Event of Default occurs and is continuing, then the Company and
the Restricted Subsidiaries will thereafter again be subject to Section
5.01(a)(v).
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. The following events shall be
"Events of Default":
(1) the Company and BCC default in the payment of the
principal or Accreted Value, as applicable, of, or premium, if any, on
any Security when the same becomes
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due and payable at its Stated Maturity, upon acceleration, redemption,
optional redemption, mandatory repurchase or declaration or otherwise;
(2) the Company and BCC default in any payment of interest on
any Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(3) the Company or BCC fails to comply with Article V;
(4) the Company or BCC fails to comply with any covenant or
agreement in the Securities or in this Indenture (other than a failure
that is the subject of the foregoing clause (1), (2) or (3)) and such
failure continues for 60 days after written notice is given to the
Company and BCC as specified below;
(5) a default by the Company or any Restricted Subsidiary
under any Indebtedness of the Company or any Restricted Subsidiary
which results in acceleration of the maturity of such Indebtedness, or
the failure to pay any such Indebtedness at final maturity, in an
aggregate amount in excess of $15,000,000 or its foreign currency
equivalent at the time;
(6) the Company, BCC or any Significant Subsidiary of the
Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
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(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company, BCC or any
Significant Subsidiary of the Company in an involuntary case;
(B) appoints a Custodian of the Company, BCC or any
Significant Subsidiary of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the
Company, BCC or any Significant Subsidiary of the Company; or
(D) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in
effect for 30 days; or
(8) any judgment or judgments for the payment of money (other
than judgments which are covered by enforceable insurance policies
issued by solvent carriers) in an aggregate amount in excess of
$15,000,000 or its foreign currency equivalent at the time is entered
against the Company or any Restricted Subsidiary and shall not be
waived, satisfied or discharged for any period of 60 consecutive days
during which a stay of enforcement shall not be in effect.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
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A Default under clause (4) is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount, in the
case of the Senior Notes or aggregate principal amount at maturity, in the case
of the Senior Discount Notes, of the Securities of a series then outstanding
notify the Company and BCC (and in the case of such notice by Holders, the
Trustee) of the Default and the Company and BCC do not cure such Default within
the time specified after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default".
The Company and BCC shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Event of Default and any event that with the giving of notice
or the lapse of time would become an Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(6) or (7) with respect to the
Company or BCC) occurs and is continuing, the Trustee by notice to the Company
and BCC, or the Holders of at least 25% in aggregate principal amount, in the
case of the Senior Notes, or aggregate principal amount at maturity, in the case
of the Senior Discount Notes, of the Securities of any series then outstanding
by notice to the Company, BCC and the Trustee, may declare the principal or
Accreted Value of, as applicable, and accrued and unpaid interest on all the
Securities of that series to be due and payable. Upon such a declaration, such
principal or Accreted Value, as applicable, and interest shall be due and
payable immediately. If an Event of Default specified in Section 6.01(6) or (7)
with respect to the Company or BCC occurs, the principal or Accreted Value of,
as applicable, and accrued and unpaid interest on all the Securities shall,
automatically and without any action by the Trustee or any Holder, become and be
immediately due and payable. The Holders of a majority in aggregate principal
amount, in the case of the Senior Notes, or aggregate principal amount at
maturity, in the case of the Senior Discount Notes, of the outstanding
Securities of a series by notice to the Trustee and the Company may rescind any
declaration of acceleration
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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
principal or Accreted Value, as applicable, or interest that has become due
solely because of the acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or Accreted Value of, as applicable, or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount, in the case of the Senior Notes, or
aggregate principal amount at maturity, in the case of the Senior Discount
Notes, of the Securities of a series then outstanding by notice to the Trustee
may waive an existing Default and its consequences except (i) a Default in the
payment of the principal or Accreted Value of, as applicable, or interest on a
Security or (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder affected. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in aggregate principal amount, in the case of the Senior Notes, or aggregate
principal amount at maturity, in the case of the Senior Discount Notes, of the
Securities of a series then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available
86
to the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of that series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability;
provided, however, that subject to Section 315 of the TIA, the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled,
in accordance with Section 6.06(2), to reasonable indemnification against all
losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount,
in the case of the Senior Notes, or aggregate principal amount at
maturity, in the case of the Senior Discount Notes, of a series then
outstanding shall have made a written request, and such Holder of or
Holders shall have offered reasonable indemnity, to the Trustee to
pursue such proceeding as trustee; and
(3) the Trustee has failed to institute such proceeding and
has not received from the Holders of at least a majority in aggregate
principal amount or aggregate principal amount at maturity, as
applicable, of the Securities of a series outstanding a direction
inconsistent with such request, within 60 days after such notice,
request and offer.
The foregoing limitations on the pursuit of remedies by a
Securityholder shall not apply to a suit instituted by a Holder of Securities
for the enforcement of payment of the principal or Accreted Value of, as
applicable, or interest on such Security on or after the applicable due date
specified in such Security. A
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Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal or Accreted Value of, as applicable, and
interest on the Securities held by such Holder, on or after the respective due
dates expressed in the Securities, or to bring 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 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company and BCC for the whole amount then due and owing (together
with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, BCC, their
respective creditors or their respective property and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI with respect to the Securities of a series,
it shall pay out the money or property in the following order:
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FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities of that series for principal or Accreted Value, as
applicable, and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal or Accreted Value as applicable, and interest,
respectively; and
THIRD: to the Company and BCC.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company and BCC shall mail to each Securityholder of the
applicable series and the Trustee a notice that states the record date, the
payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. 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 or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in aggregate principal amount, in the case of the
Senior Notes, or aggregate principal amount at maturity, in the case of the
Senior Discount Notes, of a series of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Each of the
Company and BCC (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and each of the Company and BCC (to the extent that it may lawfully
do so)
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hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise 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.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties 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 its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error
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of judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company and
BCC.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(h) 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 and to the provisions of the TIA and
the provisions of this Article VII shall apply to the Trustee in its role as
Registrar, Paying Agent and Security Custodian.
(i) The Trustee shall not be deemed to have notice of a
Default or an Event of Default unless (a) the Trustee has received written
notice thereof from the Company, BCC or any Holder or (b) a Trust Officer shall
have actual knowledge thereof.
SECTION 7.02. Rights of Trustee. Subject to Sections 315(a)
through (d) of the TIA:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by
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the proper person. The Trustee need not investigate any fact or matter stated in
the document. The Trustee may, however, in its discretion make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company and
BCC, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company, BCC or their respective Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or coregistrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's or BCC's use of the proceeds from the Securities, and it shall not
be responsible for any statement of the Company or BCC in this Indenture or in
any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Securityholder notice of the Default or Event of Default
within 90 days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default or Event of Default in
payment of principal or Accreted Value of, as applicable, or interest on any
Security, the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with May 15, 1999, and in any event
prior to July 15 in each year, the Trustee shall mail to each Securityholder a
brief report dated as of May 15 each year that complies with TIA Section 313(a),
if and to the extent required by such subsection. The Trustee shall also comply
with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. Each of the Company and BCC agrees to notify
promptly the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company and BCC
shall pay to the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and BCC shall
93
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company and BCC, jointly and severally
shall indemnify the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with the
acceptance and administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company and BCC promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
and BCC shall not relieve the Company or BCC of its obligations hereunder. The
Company and BCC shall defend the claim and the Trustee may have separate counsel
and the Company and BCC, as applicable shall pay the fees and expenses of such
counsel. The Company and BCC need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith. The Company and BCC need not pay for
any settlement made by the Trustee without the Company's or BCC's consent, such
consent not to be unreasonably withheld. All indemnifications and releases from
liability granted hereunder to the Trustee shall extend to its officers,
directors, employees, agents, successors and assigns.
To secure the Company's and BCC's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Securities.
The Company's and BCC's payment obligations pursuant to this
Section shall survive the resignation or removal of the Trustee and the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(6) or (7) with respect to the
Company or BCC, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The
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Trustee may resign at any time by so notifying the Company and BCC. The Holders
of a majority in aggregate principal amount or aggregate principal amount at
maturity, as applicable, of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Company and BCC shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company and BCC or
by the Holders of a majority in aggregate principal amount or aggregate
principal amount at maturity, as applicable, of the Securities then outstanding
and such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company and BCC
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and BCC. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in aggregate principal amount or principal amount at maturity, as
applicable, of the Securities then outstanding may petition any court of
competent jurisdiction for the appointment of a
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successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder who has been a bona fide Holder of a Security for at least six
months may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's and BCC's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities 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 shall not have
been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have (or, in the case of a corporation included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $50,000,000 as set forth in its (or its related bank holding
company's) most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), subject to the penultimate paragraph thereof;
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provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company or
BCC are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;Defeasance.
(a) When (i) the Company and BCC deliver to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article III and the Company or BCC irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption date
(other than Securities replaced pursuant to Section 2.07), and if in either case
the Company or BCC pays all other sums payable hereunder by the Company or BCC,
then this Indenture shall, subject to Section 8.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company and BCC accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Company
and BCC.
(b) Subject to Sections 8.01(c) and 8.02, the Company or BCC
at any time may terminate (i) all of their obligations under the Securities and
this Indenture ("legal defeasance option") or (ii) their obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.13 and
the operation of Sections 6.01(5), 6.01(6), 6.01(7) and 6.01(8) (but, in the
case of
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Sections 6.01(6) and (7), with respect only to Significant Subsidiaries) and the
limitations contained in clause (e) of Section 5.01 ("covenant defeasance
option"). The Company and BCC may exercise their legal defeasance option
notwithstanding their prior exercise of their covenant defeasance option.
If the Company or BCC exercises their legal defeasance option,
payment of the Securities may not be accelerated because of an Event of Default.
If the Company and BCC exercise their covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in
Sections 6.01(4) (with respect to the covenants of Article IV identified in the
immediately preceding paragraph), 6.01(5), 6.01(6), 6.01(7) and 6.01(8) (with
respect only to Significant Subsidiaries in the case of Sections 6.01(6) and
6.01(7)) or because of the failure of the Company and BCC to comply with the
limitations contained in Section 5.01(a)(v). If the Company and BCC exercise
their legal defeasance option or their covenant defeasance option, each
Restricted Subsidiary shall be released from all its obligations under this
Indenture.
Upon satisfaction of the conditions set forth herein and upon
request of the Company and BCC, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company and BCC terminate.
(c) Notwithstanding clauses (a) and (b) above, the Company's
and BCC's obligations in Sections 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Company's and BCC's obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company and BCC
may exercise its legal defeasance option or its covenant defeasance option only
if:
(1) the Company or BCC irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
principal or Accreted Value, as applicable, of and interest on the
Securities to maturity or redemption, as the case may be;
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(2) the Company and BCC deliver to the Trustee a certificate
from a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal or Accreted Value, as
applicable, and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will
be sufficient to pay principal or Accreted Value, as applicable, and
interest when due on all the Securities to maturity or redemption, as
the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(6) or (7) with
respect to the Company or BCC occurs that is continuing at the end of
the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company or BCC;
(5) the Company and BCC deliver to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
and BCC shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Securityholders
will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company
and BCC shall have delivered to the Trustee an Opinion of Counsel to
the effect that the
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Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(8) the Company and BCC deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. Subject to Section
8.02(2), the Trustee and the Paying Agent shall promptly turn over to the
Company and BCC upon request any excess money or securities held by them at any
time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company and BCC upon request any money
held by them for the payment of principal or Accreted Value, as applicable, or
interest that remains unclaimed for two years, and, thereafter, Securityholders
entitled to the money must look to the Company and BCC for payment as general
creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company and BCC shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's and BCC's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time as
the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article VIII; provided, however,
that if the Company or BCC has made any payment of interest on or principal or
Accreted Value, as applicable, of any Securities because of the reinstatement of
its obligations, the Company and BCC shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company, BCC and
the Trustee may amend this Indenture or the Securities of any series without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code or in a manner such that
the uncertificated Securities are described in Section 163(f)(2)(B) of
the Internal Revenue Code;
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(4) to add Guarantees with respect to the Securities or to
secure the Securities or to reflect the release pursuant to the terms
of this Indenture of a Restricted Subsidiary from its obligations with
respect to a Subsidiary Guarantee;
(5) to add to the covenants of the Company and BCC for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company or BCC;
(6) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(7) to make any change that does not adversely affect the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company and BCC shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, BCC and
the Trustee may amend this Indenture with respect to any series or the
Securities of a series without notice to any Securityholder but with the written
consent of the Holders of at least a majority in aggregate principal amount or
aggregate principal amount at maturity, as applicable, of the Securities of that
series then outstanding (including consents obtained in connection with a tender
offer or exchange offer for the Securities) affected by such amendment. However,
without the consent of each Securityholder affected thereby, an amendment may
not:
(1) reduce the amount of Securities of any series whose
Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal or Accreted Value, as applicable, of
or extend the Stated Maturity of any
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Security;
(4) make any Security payable in money other than that stated
in the Security;
(5) impair the right of any Holder to receive payment of
principal or Accreted Value, as applicable, of and interest on such
Holder's Securities on or after the due dates therefor or to institute
suit for the enforcement of any payment on or with respect to such
Holder's Securities;
(6) subordinate in right of payment, or otherwise subordinate
the securities to any other obligation of either the Company or BCC;
(7) reduce the amount payable upon the redemption or
repurchase of any Security under Article III or Section 4.07 or 4.13,
change the time at which any Security may or shall be redeemed in
accordance with Article III, or, at any time after a Change of Control
or Asset Sale has occurred, change the time at which any Change of
Control Offer or Offer to Purchase must be made or at which the
Securities must be repurchased pursuant to such Change of Control Offer
or Offer to Purchase;
(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section;
(9) modify any mandatory redemption provisions, if any, of a
series of Securities; or
(10) release either the Company or BCC from its obligations
under this Indenture (other than Article V).
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance
thereof.
After an amendment under this Section becomes effective, the
Company and BCC shall mail to Securityholders of each applicable series a notice
briefly describing such amendment. The failure to give such notice to all
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Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Company and BCC may, but shall not be obligated to, fix a
record date for the purpose of determining the Securityholders entitled to give
their consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver such Security to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return such
Security to the Holder. Alternatively, if the Company, BCC or the Trustee so
104
determines, the Company and BCC in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. None of the Company, BCC or
any Affiliate of the Company or BCC shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise, to
any Holder for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders of all Securities that so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE X
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision that is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail or sent by
facsimile (with a hard copy delivered in person or by mail promptly thereafter)
and
105
addressed as follows:
if to the Company:
c/o Bresnan Communications, Inc.
709 Westchester Avenue
White Plains, NY 10604
Attention of: General Counsel
if to BCC:
c/o Bresnan Communications, Inc.
709 Westchester Avenue
White Plains, NY 10604
Attention of: General Counsel
if to the Trustee:
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, CT 06103
Attention of:
Corporate Trust Division
The Company, BCC or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee
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receives it.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, BCC, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company or BCC to the Trustee
to take or refrain from taking any action under this Indenture, the Company and
BCC shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount or principal amount at
maturity, as applicable, of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company, BCC or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or BCC shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent or coregistrar may make
reasonable rules for their functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York, Connecticut and Massachusetts. If a payment date
is a Legal Holiday, payment shall be made on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 10.09. Governing Law. THIS INDENTURE AND THE
SECURITIES 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.
SECTION 10.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company or BCC shall not have
any liability for any
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obligations of the Company or BCC under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company and
BCC in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 10.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
BRESNAN
COMMUNICATIONS GROUP
LLC,
by Bresnan Communications Company
Limited Partnership, its sole
member,
by BCI (USA), L.L.C., managing
general
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partner,
by Bresnan Communications, Inc.,
member,
by /s/ Jeffery S. DeMond
------------------------------
Name: Jeffery S. DeMond
Title: SVP/CFO
BRESNAN CAPITAL CORPORATION,
by /s/ Jeffery S. DeMond
-------------------------------
Name: Jeffery S. DeMond
Title: VP
STATE STREET BANK AND TRUST COMPANY, as
Trustee,
by /s/ Cauna M. Silva
---------------------------------
Name: Cauna M. Silva
Title: Assistant Vice President
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APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depository, Euroclear and
Cedel for such a Temporary Regulation S Global Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities
clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security or Private Exchange Security bearing, if required, the
restricted securities legend set forth in Section 2.3(d).
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Distribution Compliance Period", with respect to any
Securities, means the period of 40 consecutive days beginning on and including
the later of (i) the day on which such Securities are first offered to persons
other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the issue date with respect to such
Securities.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
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"Exchange Securities" means the Exchange Senior Notes and the
Exchange Senior Discount Notes.
"Exchange Senior Discount Notes" means the 9 1/4% Senior
Discount Notes due 2009 to be issued pursuant to this Indenture in connection
with a Registered Exchange Offer pursuant to the Registration Agreement.
"Exchange Senior Notes" means the 8% Senior Notes due 2009 to
be issued pursuant to this Indenture in connection with a Registered Exchange
Offer pursuant to the Registration Agreement.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Salomon Smith Barney Inc., Chase
Securities Inc., Morgan Stanley & Co. Incorporated and TD Securities (USA) Inc.
"Initial Securities" means the Initial Senior Notes and the
Initial Senior Discount Notes.
"Initial Senior Discount Notes" means the 9 1/4% Senior
Discount Notes due 2009 to be originally issued from time to time, excluding
Exchange Senior Discount Notes and Private Exchange Senior Discount Notes, in
one or more series as provided for in this Indenture.
"Initial Senior Notes" means the 8% Senior Notes due 2009 to
be originally issued from time to time, excluding Exchange Senior Notes and
Private Exchange Senior Notes, in one or more series as provided for in this
Indenture.
"Original Securities" means the Original Senior Notes and the
Original Senior Discount Notes.
"Original Senior Discount Notes" means Initial Senior Discount
Notes in the aggregate principal amount at maturity of $275,000,000
($175,021,000 gross proceeds) issued on February 2, 1999.
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"Original Senior Notes" means Initial Senior Notes in the
aggregate principal amount of $170,000,000 issued on February 2, 1999.
"Private Exchange" means the offer by the Company, pursuant to
Section 2 of the Registration Agreement dated January 25, 1999, or pursuant to
any similar provision of any other Registration Agreement, to issue and deliver
to certain purchasers, in exchange for the Initial Securities held by such
purchasers as part of their initial distribution, a like aggregate principal
amount or aggregate principal amount at maturity, as applicable, of Private
Exchange Securities.
"Private Exchange Securities" means the Private Exchange
Senior Notes and the Private Exchange Senior Discount Notes.
"Private Exchange Senior Discount Notes" means the 9 1/4%
Senior Discount Notes due 2009 to be issued pursuant to this Indenture in
connection with a Private Exchange pursuant to the Registration Agreement.
"Private Exchange Senior Notes" means the 8% Senior Notes due
2009 to be issued pursuant to this Indenture in connection with a Private
Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means the Purchase Agreement dated
January 25, 1999, among the Company, BCC, the Parent and the Initial Purchasers
relating to the Original Securities, or any similar agreement relating to any
future sale of Initial Securities by the Company and BCC.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Registration Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount or aggregate principal amount at
maturity, as applicable, of Exchange Securities registered under the Securities
Act.
"Registration Agreement" means the Registration
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Rights Agreement dated January 25, 1999, among the Company, BCC and the Initial
Purchasers relating to the Original Securities, or any similar agreement
relating to any additional Initial Securities.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities" means the Senior Notes and the Senior Discount
Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository) or any successor person
thereto, who shall initially be the Trustee.
"Senior Discount Notes" means the Initial Senior Discount
Notes, the Exchange Senior Discount Notes and the Private Exchange Senior
Discount Notes, treated as a single class.
"Senior Notes" means the Initial Senior Notes, the Exchange
Senior Notes and the Private Exchange Senior Notes, treated as a single class.
"Shelf Registration Statement" means a registration statement
issued by the Company in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to the Registration
Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the legend set forth
in Section 2.3(d) hereto.
1.2 Other Definitions
Defined in
TermSection:
"Agent Members" 2.1(b)
"Global Security" 2.1(a)
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"IAI Global Security" 2.1(a)
"Regulation S" 2.1
"Rule 144A" 2.1
"Rule 144A Global Security" 2.1(a)
"Permanent Regulation S Global Security" 2.1(a)
"Temporary Regulation S Global Security 2.1(b)
2. The Securities
2.1 Form and Dating
The Initial Securities will be offered and sold by the
Company, from time to time, pursuant to one or more Purchase Agreements. Initial
Securities not issued pursuant to an offering registered under the Securities
Act will be resold initially only to QIBs in reliance on Rule 144A under the
Securities Act ("Rule 144A") and in reliance on Regulation S under the
Securities Act ("Regulation S"). Initial Securities may thereafter be
transferred to, among others, QIBs, non-U.S. purchasers in reliance on
Regulation S and IAIs under Rule 501(a)(1), (2), (3) or (7) under the Securities
Act, subject to the restrictions on transfers set forth herein.
(a) Global Securities. Initial Securities initially resold
pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form (collectively,
the "Rule 144A Global Security"), Initial Securities initially resold pursuant
to Regulation S shall be issued initially in the form of one or more temporary
global securities (collectively, the "Temporary Regulation S Global Security")
and, subject to Section 2.4 hereof, Initial Securities transferred subsequent to
the initial resale thereof to IAIs shall be issued initially in the form of one
or more permanent global securities in definitive, fully registered form
(collectively, the "IAI Global Security"), in each case without interest coupons
and with the global securities legend and restricted securities legend set forth
in Exhibit 1 hereto, which shall be deposited on behalf of the purchasers of the
Initial Securities represented thereby with the Securities Custodian, and
registered in the name of the Depository or a nominee of the Depository, duly
executed by the Company and authenticated by the Trustee as provided in this
Indenture.
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Beneficial ownership interests in the Temporary Regulation S Global Security
will not be exchangeable for interests in the Rule 144A Global Security, a
permanent global security (the "Permanent Regulation S Global Security"), or any
other Security without a legend containing restrictions on transfer of such
Security prior to the expiration of the Distribution Compliance Period and then
only upon certification in form reasonably satisfactory to the Trustee that
beneficial ownership interests in such Temporary Regulation S Global Security
are owned either by non-U.S. persons or U.S. persons who purchased such
interests in a transaction that did not require registration under the
Securities Act. The Rule 144A Global Security, Temporary Regulation S Global
Security, IAI Global Security and Permanent Regulation S Global Security are
collectively referred to herein as "Global Securities." The aggregate principal
amount in the case of the Senior Notes or principal amount at maturity in the
case of the Senior Discount Notes of the Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Company and BCC shall execute and the Trustee shall, in
accordance with this Section 2.1(b) and pursuant to an order of the Company and
BCC, authenticate and deliver initially one or more Global Securities that (a)
shall be registered in the name of the Depository for such Global Security or
Global Securities or the nominee of such Depository and (b) shall be delivered
by the Trustee to such Depository or pursuant to such Depository's instructions
or held by the Trustee as Securities Custodian.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as Securities
Custodian or under such Global Security, and the Depository may be treated by
the Company, BCC, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
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Notwithstanding the foregoing, nothing herein shall prevent the Company, BCC,
the Trustee or any agent of the Company, BCC or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
Original Senior Notes for original issue in an aggregate principal amount of
$170,000,000, (2) Original Senior Discount Notes for original issue in an
aggregate principal amount at maturity of $275,000,000 ($175,021,000 aggregate
gross proceeds), (3) additional Initial Senior Notes, if and when issued, in an
aggregate principal amount of up to $80,000,000, (4) additional Initial Senior
Discount Notes, if and when issued, in an aggregate principal amount at maturity
yielding gross proceeds of up to $24,979,000, (5) the Exchange Senior Notes or
Private Exchange Senior Notes for issue only in a Registered Exchange Offer or
Private Exchange, respectively, pursuant to the Registration Agreement, for a
like principal amount of Initial Senior Notes or Private Exchange Senior Notes,
as applicable, in each case upon a written order of the Company and BCC signed
by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of each of the Company and BCC and (6) the Exchange Senior
Discount Notes or Private Exchange Senior Discount Notes for issue only in a
Registered Exchange Offer or Private Exchange, respectively, pursuant to the
Registration Agreement, for a like principal amount at maturity of Initial
Senior Discount Notes or Private Exchange Senior Discount Notes, as applicable,
in each case upon a written order of the Company and BCC signed by two Officers
or by an Officer and either an Assistant Treasurer or an Assistant Secretary of
each of the Company and BCC. Such orders shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
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Securities, Exchange Securities or Private Exchange Securities. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed
$250,000,000 and the aggregate principal amount at maturity of Senior Discount
Notes outstanding may not yield aggregate gross proceeds (measured at the time
of original issuance) in excess of $200,000,000, in each case except as provided
in Section 2.08 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
coregistrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount or principal amount at maturity, as applicable, of
Definitive Securities of other authorized denominations,
the Registrar or coregistrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company,
BCC and the Registrar or co-registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(ii) if such Definitive Securities bear a restricted
securities legend, they are being transferred or exchanged pursuant to
an effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without
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transfer, a certification from such Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Company and BCC, a certification to that
effect; or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act, (i) a
certification to that effect and (ii) if the Company and BCC
so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section
2.3(d)(i).
(b) Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depository,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depository's
procedures containing information regarding the participant account of
the Depository to be credited with a beneficial interest in the Global
Security and such account shall be credited in accordance with such
instructions with a beneficial interest in the Global Security and the
account of the Person making the transfer shall be debited by an amount
equal to the beneficial interest in the Global Security being
transferred. In the case of a transfer of a beneficial interest in a
Global Security to an IAI, the transferee must furnish a signed letter
to the Trustee containing certain representations and agreements (the
form of which letter can be obtained from the Trustee, the Company or
BCC and is attached as Exhibit B).
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a
119
beneficial interest in another Global Security, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount or principal amount at maturity, as applicable, of the
Global Security to which such interest is being transferred in an
amount equal to the principal amount or principal amount at maturity,
as applicable, of the interest to be so transferred, and the Registrar
shall reflect on its books and records the date and a corresponding
decrease in the principal amount or principal amount at maturity, as
applicable, of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix A
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
(iv) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4 prior
to the consummation of a Registered Exchange Offer or the effectiveness
of a Shelf Registration Statement with respect to such Securities, such
Securities may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
(c) Restrictions on Transfer of Temporary Regulation S Global
Securities. During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be sold, pledged
or transferred through Euroclear or Cedel in accordance with the Applicable
Procedures and only (i) to the Company and BCC, (ii) so long as such security is
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eligible for resale pursuant to Rule 144A, to a person whom the selling holder
reasonably believes is a QIB that purchases for its own account or for the
account of a QIB to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, (iii) in an offshore transaction in
accordance with Regulation S, or (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States. During the Distribution Compliance Period,
interests in the Temporary Regulation S Global Security may not be transferred
to institutions that are IAIs (but not QIBs).
(d) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY AND BCC
THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY
PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE
OF THE COMPANY OR BCC AT ANY TIME DURING THE THREE MONTHS PRECEDING THE
DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY AND
BCC, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN A
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TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH
MAY BE OBTAINED FROM THE COMPANY, BCC OR THE TRUSTEE IS DELIVERED BY
THE TRANSFEREE TO THE COMPANY, BCC AND THE TRUSTEE (PROVIDED THAT NO
FOREIGN PURCHASER WHO HAS PURCHASED SECURITIES FROM AN INITIAL
PURCHASER (AN "INITIAL FOREIGN PURCHASER") OR ANY PERSON WHO HAS
PURCHASED SECURITIES FROM AN INITIAL FOREIGN PURCHASER OR FROM ANY
OTHER PERSON PURSUANT TO CLAUSE (3) SHALL BE PERMITTED TO TRANSFER ANY
SECURITIES SO PURCHASED BY IT TO AN INSTITUTIONAL ACCREDITED INVESTOR
PURSUANT TO THIS CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40 DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(3)
OF REGULATION S UNDER THE SECURITIES ACT)), (5) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS
SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY, BCC AND THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES
WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY AND BCC
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND
THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2)(i) OF RULE 902 UNDER) REGULATION S
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UNDER THE SECURITIES ACT."
Each Definitive Security will also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Security that does not bear the legends set
forth above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
that is represented by a Global Security, the Registrar shall
permit the beneficial owner thereof to exchange such Transfer
Restricted Security for a beneficial interest in a Global
Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer
Restricted Security,
in either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Security if the
Security is a Definitive Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities, as the case may be, during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Securities or Private Exchange Securities, all requirements
pertaining to restricted legends on such
123
Initial Security or such Private Exchange Security will cease to apply
and an Initial Security or Private Exchange Security, as the case may
be, in global form without restricted legends will be available to the
transferee of the beneficial interests of such Initial Securities or
Private Exchange Securities. Upon the occurrence of any of the
circumstances described in this paragraph, the Company and BCC will
deliver an Officers' Certificate to the Trustee instructing the Trustee
to issue Securities without restricted legends.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which certain Holders of
such Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, Exchange Securities in global form without
restricted legends will be available to Holders or beneficial owners
that exchange such Initial Securities (or beneficial interests therein)
in such Registered Exchange Offer. Upon the occurrence of any of the
circumstances described in this paragraph, the Company and BCC will
deliver an Officers' Certificate to the Trustee instructing the Trustee
to issue Securities without restricted legends.
(e) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned by the Depository to the Trustee for cancelation or retained
and canceled by the Trustee. At any time prior to such cancelation, if any
beneficial interest in a Global Security is exchanged for Definitive Securities,
redeemed, repurchased or canceled, the principal amount or principal amount at
maturity, as applicable, of Securities represented by such Global Security shall
be reduced and an adjustment shall be made on the books and records of the
Trustee (if it is then the Securities Custodian for such Global Security) with
respect to such Global Security, by the Trustee or the Securities Custodian, to
reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of
Securities.
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(i) To permit registrations of transfers and exchanges, the
Company and BCC shall execute and the Trustee shall authenticate
Definitive Securities and Global Securities at the Registrar's or
co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.08 and 9.05 of
this Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning 15 days before the mailing of a notice of redemption or an
offer to repurchase Securities or 15 days before an interest payment
date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, BCC, the Trustee, the Paying
Agent, the Registrar or any coregistrar may deem and treat the person
in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, BCC,
the Trustee, the Paying Agent, the Registrar or any coregistrar shall
be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global
125
Security, a member of, or a participant in the Depository or any other
Person with respect to the accuracy of the records of the Depository or
its nominee or of any participant or member thereof, with respect to
any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the
Securities shall be given or made only to the registered Holders (which
shall be the Depository or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall
be exercised only through the Depository subject to the applicable
rules and procedures of the Depository. The Trustee may rely and shall
be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities
(a) A Global Security deposited with the Depository or with the
Trustee as Securities Custodian pursuant to Section 2.1 shall be transferred to
the beneficial owners thereof in the form of Definitive Securities in an
aggregate principal amount or principal amount at maturity, as applicable, equal
to the principal amount or principal amount at maturity, as applicable, of
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such Global Security, in exchange for such Global Security only if such transfer
complies with Section 2.3 and (i) the Depository notifies the Company and BCC
that it is unwilling or unable to continue as a Depository for such Global
Security or if at any time the Depository ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company and BCC within 90 days of such notice, or (ii) a Default or an
Event of Default has occurred and is continuing or (iii) the Company and BCC, in
their sole discretion, notify the Trustee in writing that they elect to cause
the issuance of Definitive Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depository to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount or principal amount at maturity, as applicable, of Definitive
Securities of authorized denominations. Definitive Securities issued in exchange
for any portion of a Global Security transferred pursuant to this Section shall
be executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depository shall
direct. Any Definitive Security delivered in exchange for an interest in the
Global Security shall, except as otherwise provided by Section 2.3(d), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) The registered Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action that a Holder
is entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company and BCC will promptly
make available to the Trustee a reasonable supply of Definitive Securities in
definitive, fully registered form without interest coupons.
127
EXHIBIT 1
to APPENDIX A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY, BCC OR THEIR AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY AND BCC THAT THIS SECURITY MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND
ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y)
BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY OR BCC AT ANY TIME DURING THE
THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1)
TO THE COMPANY AND BCC, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A
128
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN A
TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY, BCC OR THE TRUSTEE IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY, BCC AND THE TRUSTEE (PROVIDED THAT
NO FOREIGN PURCHASER WHO HAS PURCHASED SECURITIES FROM AN INITIAL PURCHASER (AN
"INITIAL FOREIGN PURCHASER") OR ANY PERSON WHO HAS PURCHASED SECURITIES FROM AN
INITIAL FOREIGN PURCHASER OR FROM ANY OTHER PERSON PURSUANT TO CLAUSE (3) SHALL
BE PERMITTED TO TRANSFER ANY SECURITIES SO PURCHASED BY IT TO AN INSTITUTIONAL
ACCREDITED INVESTOR PURSUANT TO THIS CLAUSE (4) PRIOR TO THE EXPIRATION OF THE
"40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(3) OF
REGULATION S UNDER THE SECURITIES ACT)), (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY, BCC AND THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE
TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE COMPANY AND BCC THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
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UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[Temporary Regulation S Global Security Legend]
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S
GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL NOTE
OR THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN
INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(3) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY RESTRICTED PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH THE
EUROCLEAR SYSTEM OR CEDEL S.A. AND ONLY (A) TO THE COMPANY, BCC OR ANY
SUBSIDIARY OF THE COMPANY OR BCC, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE). DURING SUCH 40-DAY RESTRICTED
PERIOD, INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE
TRANSFERRED TO INSTITUTIONS THAT ARE "ACCREDITED INVESTORS" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT BUT NOT QUALIFIED
INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT. HOLDERS
OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY
PURCHASER OF SUCH RESALE RESTRICTIONS, IF THEN APPLICABLE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER
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INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.