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EXHIBIT 4.2
[FORM OF FACE OF INITIAL SENIOR NOTE]
No. Up to $
8% Senior Note due 2009
CUSIP No. ______
Bresnan Communications Group LLC, a Delaware limited liability company (the
"Company"), and Bresnan Capital Corporation, a Delaware corporation ("BCC"),
promise to pay to Cede & Co., or registered assigns, the principal sum as set
forth on the Schedule of Increases or Decreases annexed hereto on February 1,
2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
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Additional provisions of this Senior Note are set forth on the
other side of this Senior Note.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
BRESNAN COMMUNICATIONS GROUP LLC,
by Bresnan Communications Company
Limited Partnership, its sole
member
by BCI (USA) L.L.C., managing
general partner
by Bresnan Communications, Inc.,
managing member
by_______________________________
Name:
Title:
by_______________________________
Name:
Title:
BRESNAN CAPITAL CORPORATION,
by_______________________________
Name:
Title:
by_______________________________
Name:
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Title:
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
STATE STREET BANK AND
TRUST COMPANY,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By: _________________________
Authorized Signatory
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[FORM OF REVERSE SIDE OF INITIAL SENIOR NOTE]
8% Senior Note due 2009
1. Interest
(a) Bresnan Communications Group LLC, a Delaware limited
liability company (such limited liability company, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the
"Company"), and Bresnan Capital Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called "BCC") promise to pay interest on the principal
amount of this Senior Note at the rate per annum shown above. The Company and
BCC will pay interest semiannually on February 1 and August 1 of each year.
Interest on the Senior Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from February 2, 1999.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company and BCC shall pay interest on overdue principal at the rate
borne by the Senior Notes plus 1% per annum, and it shall pay interest on
overdue installments of interest at the rate borne by the Senior Notes to the
extent lawful.
(b) Special Interest. The holder of this Senior Note is
entitled to the benefits of a Registration Agreement, dated as of January 25,
1999, among the Company, BCC and the Initial Purchasers named therein (the
"Registration Agreement"). Capitalized terms used in this paragraph (b) but not
defined herein have the meanings assigned to them in the Registration Agreement.
In the event that (i) the Exchange Offer Registration Statement has not been
filed with the Commission on or prior to the 120th day following the date of the
original issuance of the Senior Notes or the Shelf Registration Statement is not
filed on or prior to the 60th day following the date on which an obligation to
file a Shelf Registration Statement arose, (ii) the Exchange Offer Registration
Statement has not been declared effective on or prior to the 180th day following
the date of the original issuance of the Senior Notes, (iii) the Registered
Exchange Offer has not been consummated on or prior to the later of the 45th day
after
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the date on which the Exchange Offer Registration Statement was declared
effective or the 210th day following the date of the original issuance of the
Senior Notes or the Shelf Registration Statement has not been declared effective
on or prior to the 120th day following the date on which the obligation to file
the Shelf Registration Statement arose, or (iv) after the Shelf Registration
Statement has been declared effective, such Registration Statement thereafter
ceases to be effective or usable in connection with resales of the Senior Notes
at any time that the Company is obligated to maintain the effectiveness thereof
pursuant to the Registration Agreement (each such event referred to in clauses
(i) through (iv) above being referred to herein as a "Registration Default"),
interest (the "Special Interest") shall accrue (in addition to stated interest
on the Senior Notes) from and including the date on which the first such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured, at a rate per annum equal to 0.25% of the
principal amount of the Senior Notes; provided, however, that such rate per
annum shall increase by 0.25% per annum from and including the 91st day after
the first such Registration Default (and each successive 91st day thereafter)
unless and until all Registration Defaults have been cured; provided further,
however, that in no event shall the Special Interest accrue at a rate in excess
of 1.00% per annum. The Special Interest will be payable in cash semiannually in
arrears each February 1 and August 1.
2. Method of Payment
The Company and BCC will pay interest on the Senior Notes
(except defaulted interest) to the Persons who are registered holders of Senior
Notes at the close of business on the January 15 or July 15 next preceding the
interest payment date even if Senior Notes are canceled after the record date
and on or before the interest payment date. Holders must surrender Senior Notes
to a Paying Agent to collect principal payments. The Company will pay principal
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Senior Notes represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of immediately
available funds to the accounts
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specified by The Depository Trust Company. The Company will make all payments in
respect of a certificated Senior Note (including principal, premium and
interest), by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Senior Notes may also be made, in the
case of a Holder of at least $1,000,000 aggregate principal amount of Senior
Notes, by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a
Massachusetts trust company (the "Trustee"), will act as Paying Agent and
Registrar. The Company and BCC may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company and BCC or any of the
Company's domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture
The Company and BCC issued the Senior Notes under an Indenture
dated as of February 2, 1999 (the "Indenture"), among the Company, BCC and the
Trustee. The terms of the Senior Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Senior Notes are
subject to all such terms, and Securityholders are referred to the Indenture and
the TIA for a statement of those terms.
The Senior Notes are senior unsecured obligations of the
Company and BCC limited to $250,000,000 aggregate principal amount at any one
time outstanding (subject to Sections 2.01 and 2.08 of the Indenture). This
Senior Note is one of the Original Senior Notes referred to in the
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Indenture issued in an aggregate principal amount of $170,000,000. The Senior
Notes include the Original Senior Notes, up to an aggregate principal amount of
$80,000,000 additional Initial Senior Notes that may be issued under the
Indenture, and any Exchange Senior Notes issued in exchange for Initial Senior
Notes. The Original Senior Notes, such additional Initial Senior Notes and the
Exchange Senior Notes are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make Asset Dispositions. The Indenture also imposes limitations on the
ability of the Company and BCC to consolidate or merge with or into any other
Person or sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all of the Property of the Company and BCC. These limitations are
subject to significant exceptions, and most would cease to be effective while
the Senior Notes have an Investment Grade Rating.
5. Redemption
(a) Except as set forth below, the Senior Notes may not be
redeemed prior to February 1, 2004. On and after that date, the Company and BCC
may redeem the Senior Notes in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of principal amount),
plus accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period beginning on or after
February 1 of the years set forth below:
Period
2004
2005
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2006
2007 and thereafter
Redemption
Price
-----
104.000%
102.667%
101.333%
100.000%
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Notwithstanding the foregoing, on or prior to February 1,
2002, the Company and BCC may redeem up to 35% of the original aggregate
principal amount of the Senior Notes issued with the net cash proceeds to the
Company from one or more Equity Offerings, at a redemption price equal to
108.000% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date that it on or prior to the date of redemption); provided,
however, that after giving effect to any such redemption, at least 65% of the
original aggregate principal amount of the Senior Notes remains outstanding. Any
such redemption shall be made within 75 days of such Equity Offering.
(b) Notwithstanding the foregoing, in the event that the
Funding Conditions are not satisfied on or prior to April 30, 1999 or the
Contribution Agreement is terminated prior to such date, then the Company and
BCC will redeem all the Senior Notes at a redemption price in cash equal to 101%
of the aggregate principal amount plus accrued and unpaid interest, if any, to
the Mandatory Redemption Date.
The "Mandatory Redemption Date" means the earlier of (a) May
14, 1999, in the event that the Funding Conditions are not satisfied by April
30, 1999, and (b) the 15th day (or if such day is not a Business Day, the next
following Business Day) following the termination of the Contribution Agreement.
The "Funding Conditions" mean the occurrence of the following
events:
(i) the consummation of the TCI Transactions, as contemplated
throughout the Offering Memorandum, in accordance with the terms of the
Contribution Agreement (and the related agreements referenced therein);
provided that the terms of such transactions and the assets and
businesses combined pursuant thereto conform in all material respects
to the descriptions thereof contained throughout the Offering
Memorandum (subject to any changes contemplated therein),
(ii) the funding of the capital contribution by
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Blackstone in an aggregate amount of not less than $136.5 million,
(iii) the conditions to the closing under the Contribution
Agreement (and the related agreements referenced therein) shall have
been satisfied or waived and
(iv) the availability under the New Credit Facility of an
aggregate amount of not less than $600.0 million and borrowings
thereunder necessary to effect the TCI Transactions as contemplated
throughout the Offering Memorandum, provided that the terms of the New
Credit Facility conform in all material respects to the descriptions
thereof contained throughout the Offering Memorandum.
6. Sinking Fund
The Senior Notes are not subject to any sinking fund.
7. Notice of Redemption
Notice of optional redemption pursuant to paragraph 5(a) will
be mailed by first-class mail at least 30 days but not more than 60 days before
the redemption date, and notice of mandatory redemption pursuant to paragraph
5(b) will be mailed promptly after the occurrence of the event triggering such
redemption but in no event less than 10 days prior to the Mandatory Redemption
Date, in each case, to each Holder of Senior Notes to be redeemed at his or her
registered address. Senior Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued interest on all Senior Notes (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Senior Notes
(or such portions thereof) called for redemption.
8. Repurchase of Senior Notes at the Option of Holders upon
Change of Control
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Upon a Change of Control, any Holder of Senior Notes will have
the right, subject to certain conditions specified in the Indenture, to cause
the Company to repurchase all or any part of the Senior Notes of such Holder at
a purchase price equal to 101% of the principal amount of the Senior Notes to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
9. Denominations; Transfer; Exchange
The Senior Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Senior Notes in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Senior Notes selected for redemption
(except, in the case of a Senior Note to be redeemed in part, the portion of the
Senior Note not to be redeemed) or to transfer or exchange any Senior Notes for
a period of 15 days prior to a selection of Senior Notes to be redeemed or 15
days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Senior Note may be treated as
the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company and BCC at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look only to the Company and BCC and not to the Trustee for payment.
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12. Discharge and Defeasance
Subject to certain conditions, the Company and BCC at any time
may terminate some of or all its obligations under the Senior Notes and the
Indenture if the Company or BCC deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the Senior
Notes to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Senior Notes may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Senior Notes and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Senior Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Senior Notes, the Company, BCC
and the Trustee may amend the Indenture or the Senior Notes (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to comply with Article V of
the Indenture; (iii) to provide for uncertificated Senior Notes in addition to
or in place of certificated Senior Notes; (iv) to add Guarantees with respect to
the Senior Notes; (v) to reflect the release pursuant to the terms of the
Indenture of a Restricted Subsidiary from its obligations with respect to a
Subsidiary Guarantee; (vi) to secure the Senior Notes; (vii) to add additional
covenants or to surrender rights and powers conferred on the Company; (viii) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; or (ix) to make any change that
does not adversely affect the rights of any Securityholder.
14. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Senior Notes
then outstanding, subject to certain limitations, may declare all the Senior
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Notes to be immediately due and payable. Certain events of bankruptcy or
insolvency are Events of Default and shall result in the Senior Notes being
immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Senior Notes may not enforce the Indenture or the
Senior Notes except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Senior Notes unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding may direct the
Trustee in its exercise of any trust or power under the Indenture. The Holders
of a majority in aggregate principal amount of the Senior Notes then
outstanding, by written notice to the Company and the Trustee, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of the acceleration.
15. Trustee Dealings with the Company and BCC
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Senior Notes and may otherwise deal with and collect
obligations owed to it by the Company, BCC or their respective Affiliates and
may otherwise deal with the Company, BCC or their respective Affiliates with the
same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or BCC shall not have any liability for any obligations of the Company
or BCC under the Senior Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Senior Note, each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Senior
Notes.
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17. Authentication
This Senior Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Senior Note.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company and BCC have caused
CUSIP numbers to be printed on the Senior Notes and have directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Senior Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
THE COMPANY AND BCC WILL FURNISH TO ANY HOLDER OF SENIOR NOTES
UPON WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE
WHICH HAS IN IT THE TEXT OF THIS SENIOR NOTE.
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ASSIGNMENT FORM
To assign this Senior Note, fill in the form below:
I or we assign and transfer this Senior Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Senior Note on the books of the Company. The
agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Senior Note.
In connection with any transfer of any of the Senior Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Senior Notes and the last date, if any, on which such Senior Notes were
owned by the Company, BCC or any Affiliate of the Company or BCC, the
undersigned confirms that such Senior Notes are being transferred in accordance
with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company and BCC; or
(2) [ ] pursuant to an effective registration
statement under the Securities Act of 1933;
or
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(3) [ ] to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given
that such transfer is being made in reliance
on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation S under
the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
(5) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act of 1933) that has
furnished to the Trustee a signed letter
containing certain representations and
agreements (the form of which letter can be
obtained from the Trustee, the Company or
BCC); or
(6) [ ] pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Senior Notes evidenced by this certificate in the name of
any person other than the registered holder thereof; provided, however,
that if box (4), (5) or (6) is checked, the Trustee may require, prior
to registering any such transfer of the Senior Notes, such legal
opinions, certifications and other information as the Company and BCC
have reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
___________________________
Your Signature
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Signature Guarantee:
Date: ______________________ __________________________
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
______________________________________________________________________________
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $ .
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal Amount Signature of
Exchange in Principal in Principal of this Global authorized
Amount of this Amount of this Security following signatory of
Global Security Global Security such decrease or Trustee or
increase Securities
Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SENIOR NOTE
PURCHASED BY THE COMPANY AND BCC PURSUANT TO SECTION 4.07 (ASSET
DISPOSITION) OR 4.13 (CHANGE OF CONTROL) OF THE INDENTURE, CHECK THE BOX:
[ ]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SENIOR NOTE PURCHASED BY THE COMPANY AND BCC PURSUANT TO SECTION 4.07 OR 4.13 OF
THE INDENTURE, STATE THE AMOUNT:
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE
SENIOR NOTE)
SIGNATURE GUARANTEE:_______________________________________
SIGNATURE MUST BE GUARANTEED BY A
PARTICIPANT IN A RECOGNIZED SIGNATURE
GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE
TRUSTEE.