EXHIBIT 4.3
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COAXIAL LLC
and COAXIAL FINANCING CORP.,
as Issuers,
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC,
as Guarantor,
and
BANK OF MONTREAL TRUST COMPANY,
as Trustee
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INDENTURE
Dated as of August 21, 1998
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$55,869,000 Aggregate Principal Amount at Maturity
12 7/8% Senior Discount Notes due 2008
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08; 7.10;
12.02
(b)(1) 7.10
(b)(9) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06
(c) 12.02
(d) 7.06
314(a) 4.02; 4.04;
12.02
(b) N.A.
(c)(1) 12.04; 12.05
(c)(2) 12.04; 12.05
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01; 7.02
(b) 7.05; 12.02
(c) 7.01
(d) 6.05; 7.01;
7.02
(e) 6.11
316(a) (last sentence) 2.10
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 8.02
(b) 6.07
(c) 8.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 7.12
318(a) 12.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. 1
Section 1.02. Other Definitions. 27
Section 1.03. Incorporation by Reference of Trust
Indenture Act. 28
Section 1.04. Rules of Construction. 28
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes. 29
Section 2.02. Form and Dating. 29
Section 2.03. Execution and Authentication. 30
Section 2.04. Registrar and Paying Agent. 31
Section 2.05. Paying Agent to Hold Money in Trust. 32
Section 2.06. Noteholder Lists. 32
Section 2.07. Transfer and Exchange. 32
Section 2.08. Replacement Notes. 33
Section 2.09. Outstanding Notes. 34
Section 2.10. Treasury Notes. 34
Section 2.11. Temporary Notes. 35
Section 2.12. Cancellation. 35
Section 2.13. Defaulted Interest. 35
Section 2.14. CUSIP Number. 36
Section 2.15. Deposit of Moneys. 36
Section 2.16. Book-Entry Provisions for Global Notes. 36
Section 2.17. Special Transfer Provisions. 39
Section 2.18. Computation of Interest. 42
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee. 42
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Section 3.02. Selection by Trustee of Notes to Be
Redeemed. 42
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. Notes Redeemed in Part. 44
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. 45
Section 4.02. SEC Reports. 45
Section 4.03. Waiver of Stay, Extension or Usury Laws. 46
Section 4.04. Compliance Certificate. 46
Section 4.05. Taxes. 47
Section 4.06. Limitation on Additional Indebtedness. 47
Section 4.07. Enforcement of Rights. 49
Section 4.08. Limitation on Capital Stock of
Restricted Subsidiaries. 49
Section 4.09. Limitation on Restricted Payments. 49
Section 4.10. Limitation on Certain Asset Sales. 51
Section 4.11. Limitation on Transactions with Affiliates. 54
Section 4.12. Limitations on Liens. 55
Section 4.13. [Intentionally Omitted]. 55
Section 4.14. Limitation on Creation of Subsidiaries. 55
Section 4.15. [Intentionally Omitted]. 56
Section 4.16. Limitation on Sale and Lease-Back
Transactions. 56
Section 4.17. Payments for Consent. 56
Section 4.18. Legal Existence. 56
Section 4.19. Change of Control. 57
Section 4.20. Maintenance of Office or Agency. 60
Section 4.21. Maintenance of Properties; Insurance; Books
and Records; Compliance with Law. 61
Section 4.22. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries. 61
Section 4.23. Limitation on Disqualified Capital Stock of
Subsidiaries. 62
Section 4.24. Limitation on Asset Swaps. 63
Section 4.25. Payment of Pass Through Dividends. 64
Section 4.26. Limitation on Conduct of Business. 64
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Section 4.27. Further Assurance to the Trustee. 64
Section 4.28. No Recourse Against the Issuers. 64
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets. 65
Section 5.02. Successor Person Substituted. 66
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. 66
Section 6.02. Acceleration. 68
Section 6.03. Other Remedies. 70
Section 6.04. Waiver of Past Defaults and Events of
Default. 71
Section 6.05. Control by Majority. 71
Section 6.06. Limitation on Suits. 71
Section 6.07. Rights of Holders to Receive Payment. 72
Section 6.08. Collection Suit by Trustee. 72
Section 6.09. Trustee May File Proofs of Claim. 73
Section 6.10. Priorities. 73
Section 6.11. Undertaking for Costs. 74
Section 6.12. Restoration of Rights and Remedies. 74
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. 74
Section 7.02. Rights of Trustee. 76
Section 7.03. Individual Rights of Trustee. 77
Section 7.04. Trustee's Disclaimer. 77
Section 7.05. Notice of Defaults. 77
Section 7.06. Reports by Trustee to Holders. 77
Section 7.07. Compensation and Indemnity. 78
Section 7.08. Replacement of Trustee. 79
Section 7.09. Successor Trustee by Consolidation, Merger,
Etc. 80
Section 7.10. Eligibility; Disqualification. 80
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Section 7.11. Preferential Collection of Claims Against
the Issuers. 81
Section 7.12. Paying Agents. 81
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders. 82
Section 8.02. With Consent of Holders. 82
Section 8.03. Compliance with Trust Indenture Act. 84
Section 8.04. Revocation and Effect of Consents. 84
Section 8.05. Notation on or Exchange of Notes. 85
Section 8.06. Trustee to Sign Amendments, etc. 85
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture. 86
Section 9.02. Legal Defeasance. 86
Section 9.03. Covenant Defeasance. 87
Section 9.04. Conditions to Defeasance or Covenant
Defeasance. 87
Section 9.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions. 89
Section 9.06. Reinstatement. 90
Section 9.07. Moneys Held by Paying Agent. 91
Section 9.08. Moneys Held by Trustee. 91
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee. 92
Section 10.02. Execution and Delivery of Guarantees. 93
Section 10.03. Limitation of Guarantee. 94
Section 10.04. Additional Guarantors. 94
Section 10.05. Release of Guarantor. 94
Section 10.06. Waiver of Subrogation. 95
Section 10.07. Subordination of Guarantees. 95
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ARTICLE 11
SECURITY
Section 11.01. Pledge of Discount Notes Collateral. 96
Section 11.02. Recording; Priority; Opinions, Etc. 97
Section 11.03. Release of the Discount Notes Collateral. 97
Section 11.04. Trust Indenture Act Requirements. 98
Section 11.05. Suits to Protect Discount Notes Collateral. 99
Section 11.06. Purchase Protected. 99
Section 11.07. Powers Exercisable by Receiver or Trustee. 99
Section 11.08. Determinations Relating to Discount Notes
Collateral. 100
Section 11.09. Release upon Termination of Coaxial LLC's
Obligations. 100
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. 100
Section 12.02. Notices. 101
Section 12.03. Communications by Holders with Other
Holders. 102
Section 12.04. Certificate and Opinion as to Conditions
Precedent. 103
Section 12.05. Statements Required in Certificate and
Opinion. 103
Section 12.06. Rules by Trustee and Agents. 104
Section 12.07. Business Days; Legal Holidays. 104
Section 12.08. Governing Law. 104
Section 12.09. No Adverse Interpretation of Other
Agreements. 104
Section 12.10. No Recourse Against Others. 104
Section 12.11. Successors. 105
Section 12.12. Multiple Counterparts. 105
Section 12.13. Table of Contents, Headings, etc. 105
Section 12.14. Separability. 106
SIGNATURES. S-1
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EXHIBITS
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Exhibit A. Form of Note A-1
Exhibit B. Form of Legend and Assignment for
Rule 144A Note B-1
Exhibit C. Form of Legend and Assignment for
Regulation S Note C-1
Exhibit D. Form of Legend for Global Note D-1
Exhibit E. Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Accredited Investors E-1
Exhibit F. Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S F-1
Exhibit G. Form of Guarantee G-1
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-1-
INDENTURE, dated as of August 21, 1998, among COAXIAL LLC, a Delaware
limited liability company ("Coaxial LLC"), COAXIAL FINANCING CORP., a Delaware
corporation ("Coaxial Financing" and, together with Coaxial LLC, the "Issuers"),
the Guarantors (as hereinafter defined) and BANK OF MONTREAL 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 Issuers' 12 7/8% Senior
Discount Notes due 2008 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
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"Accreted Value" means, as of any date prior to August 15, 2003, an amount per
$1,000 principal amount at maturity of Notes that is equal to the sum of (a)
$536.98 and (b) the portion of the excess of the principal amount at maturity of
each Note over $536.98 which shall have been amortized on a daily basis and
compounded semiannually on each February 15 and August 15 at the rate of 12 7/8%
per annum from the Issue Date through the date of determination computed on the
basis of a 360-day year of twelve 30-day months; and, as of any date on or after
August 15, 2003, the Accreted Value of each Note shall mean the aggregate
principal amount at maturity of such Note.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged into or consolidated with any other Person or which is
assumed in connection with the acquisition of assets from such Person and, in
each case, not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary or such merger,
consolidation or acquisition.
"Additional Interest" means additional interest on the Notes which the Issuers
and the Guarantors, jointly and severally, agree to pay to the Holders pursuant
to Section 4 of the Registration Rights Agreement.
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"Adjusted Net Assets" of any Person at any date shall mean the lesser of the
amount by which (x) the fair value of the property of such Person exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding liabilities under the Guarantee of such Person at such date and
(y) the present fair salable value of the assets of such Person at such date
exceeds the amount that will be required to pay the probable liability of such
Person on its debts (after giving effect to all other fixed and contingent
liabilities and after giving effect to any collection from any Subsidiary of
such Person in respect of the obligations of such Person under the Guarantee of
such Person), excluding Indebtedness in respect of the Guarantee of such Person,
as they become absolute and matured.
"Affiliate" means, with respect to any specific Person, any other Person that
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that, for purposes of Section 4.11 hereof, beneficial
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ownership of at least 10% of the voting securities of a Person, either directly
or indirectly, shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, or agent for service of notices and
demands.
"Annualized EBITDA" means EBITDA of the Issuers and their Restricted
Subsidiaries for the latest fiscal quarter for which financial statements are
available multiplied by four (such fiscal quarter the "One Quarter Period"). For
purposes of this definition, "EBITDA" shall be calculated for any period after
giving effect on a pro forma basis to (i) the incurrence or repayment of any
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Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital
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facilities, occurring during the One Quarter Period or at any time subsequent to
the last day of the One Quarter Period and on or prior to the Transaction Date,
as if such incurrence or repayment, as the case may be (and the application of
the proceeds thereof), occurred on the first day of the One Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including
any EBITDA (provided that such EBITDA shall be included only to the extent
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includable pursuant to the definition of "Consolidated Net Income") attributable
to the assets which are the subject of the Asset Acquisition or Asset Sale
during the One Quarter Period) occurring during the One Quarter Period or at any
time subsequent to the last day of the One Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred
on the first day of the One Quarter Period. If such Person or any of its
Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such
Person had directly incurred or otherwise assumed such guaranteed Indebtedness.
For purposes of this definition, whenever pro forma effect is to be given to an
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Asset Sale or Asset Acquisition (including pursuant to the System Acquisition),
the amount of income or earnings and any net cost savings relating thereto and
the amount of Consolidated Interest Expense associated with any Indebtedness
incurred in connection therewith, the pro forma calculations shall be determined
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in accordance with Regulation S-X under the Securities Act.
"Asset Acquisition" means (a) an Investment by an Issuer or any Restricted
Subsidiary of an Issuer in any other Person pursuant to which such Person shall
become a Restricted Subsidiary of an Issuer or any Restricted Subsidiary of an
Issuer, or shall be merged with or into an Issuer or any Restricted Subsidiary
of an Issuer or (b) the acquisition by an Issuer or any Restricted Subsidiary of
an Issuer of the assets of any Person (other than a Restricted Subsidiary of an
Issuer) which constitute all or substantially all of the assets of such Person
or comprise any division or line of business of such
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Person or any other properties or assets of such Person other than in the
ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
assignment, transfer, lease or other disposition (excluding Asset Swaps), other
than to an Issuer or any of its Wholly Owned Subsidiaries, in any single
transaction or series of related transactions of (a) any Capital Stock of or
other equity interest in any Restricted Subsidiary of an Issuer or (b) any other
property or assets of an Issuer or of any Restricted Subsidiary thereof;
provided that Asset Sales shall not include (i) a transaction or series of
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related transactions for which an Issuer or its Restricted Subsidiaries receive
aggregate consideration of less than $1.5 million, (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of an Issuer as permitted under Section 5.01 hereof, (iii) any
transaction consummated in compliance with Section 4.09 hereof and (iv) any
sale, lease, conveyance, disposition or other transfer of all or any portion of
the Excluded Assets.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash received
by an Issuer or any Restricted Subsidiary of an Issuer from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, (c) provision for minority interest holders
in any Restricted Subsidiary of an Issuer as a result of such Asset Sale, (d)
repayment of Indebtedness that is required to be repaid in connection with such
Asset Sale and (e) deduction of appropriate amounts to be provided by an Issuer
or a Restricted Subsidiary of an Issuer as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by an Issuer or a Restricted Subsidiary after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale, and (ii) promissory notes and other noncash consideration
received by an Issuer or any Restricted Subsidiary of an Issuer from such Asset
Sale or other disposition upon the liquidation or conversion of such notes or
noncash consideration into cash.
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"Asset Swap" means the execution of a definitive agreement, subject only to
customary closing conditions that the Issuers in good faith believe will be
satisfied, for a concurrent purchase and sale or exchange of Related Business
Assets, between an Issuer or any of its Restricted Subsidiaries and another
Person, provided that any amendment to or waiver of any closing condition which
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individually or in the aggregate is material to any Asset Swap shall be deemed
to be a new Asset Swap that must comply with Section 4.24 hereof; it being
understood that an Asset Swap may include a cash equalization payment made in
connection therewith, provided that any such cash payment shall be applied in
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accordance with Section 4.24 hereof.
"Attributable Indebtedness" in respect of a Sale and Lease-Back Transaction
means, as at the time of determination, the greater of (i) the fair value of the
property subject to such arrangement and (ii) the present value of the notes
(discounted at the rate borne by the Notes, compounded semi-annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale and Lease-Back Transaction (including any period
for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sale that have not been applied in
accordance with clause (iii)(a), (iii)(b) or (iii)(c) of the first paragraph of
Section 4.10 and that have not been the basis for an Excess Proceeds Offer in
accordance with clause (iii)(d) of the first paragraph of Section 4.10 hereof.
"Board of Directors" of any Person means the board of directors, management
committee or other body governing the management and affairs of such Person.
"Board Resolution" means a copy of a resolution certified pursuant to an
Officers' Certificate to have been duly adopted by the Board of Directors of an
Issuer or a Guarantor, as appropriate, and to be in full force and effect, and
delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership interests or any other
participation, right or other interest in the nature of an
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equity interest in such Person including, without limitation, Common Stock and
Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means with respect to any Person, 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.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency or instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's Investors Service, Inc.
("Moody's"); (iii) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a rating of at least
A-1 from S&P or at least P-1 from Moody's; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $250,000,000; and (v) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
A "Change of Control" will be deemed to have occurred at such time as (i) any
Person (including a Person's Affiliates and associates), other than a Permitted
Holder, becomes the beneficial owner (as defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of 50% or more
of the total voting and economic power of Insight
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Ohio's Capital Stock, (ii) any Person (including a Person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner of more
than 33 1/3% of the total voting power of Insight Ohio's Capital Stock and the
Permitted Holders beneficially own, in the aggregate, a lesser percentage of the
total voting power of the Capital Stock of Insight Ohio than such other Person
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of Insight
Ohio, (iii) there shall be consummated any consolidation or merger of Insight
Ohio in which Insight Ohio is not the continuing or surviving corporation or
pursuant to which the Capital Stock of Insight Ohio would be converted into
cash, securities or other property, other than a merger or consolidation of
Insight Ohio in which the holders of the Capital Stock of Insight Ohio
outstanding immediately prior to the consolidation or merger hold, directly or
indirectly, at least a majority of the Capital Stock of the surviving
corporation immediately after such consolidation or merger, (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of Insight Ohio (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders or members of Insight Ohio has been approved by 66
2/3% of the directors then still in office who either were directors at the
beginning of such period or whose election or recommendation for election was
previously so approved) cease to constitute a majority of the Board of Directors
of Insight Ohio or (v) Insight is the beneficial owner of less than 50% of the
total voting and economic power of Insight Ohio's Capital Stock and ceases to
have management control of the day-to-day operations of Insight Ohio; provided,
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however, that a Change of Control will be deemed not to have occurred as
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provided above if Insight continues to be the manager of Insight Ohio pursuant
to the Operating Agreement or designees of Insight constitute a majority of the
Board of Directors of Insight Ohio.
"Close Corporation Agreement" means the Close Corporation Agreement of Coaxial
Communications of Central Ohio, Inc. by and among Coaxial, Coaxial LLC, Coaxial
DJM LLC and Coaxial DSM LLC as in effect on the Issue Date.
"Coaxial" means Coaxial Communications of Central Ohio, Inc., an Ohio
corporation.
"Coaxial Financing Corp." means Coaxial Financing Corp., a Delaware
corporation.
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"Coaxial LLC" means Coaxial LLC, a Delaware limited liability company.
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to (i) vote in the election of directors of such Person or
(ii) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Consolidated Interest Expense" means, with respect to any Person, for any
period, the aggregate amount of interest which, in conformity with GAAP, would
be set forth opposite the caption "interest expense" or any like caption on an
income statement for such Person and its Restricted Subsidiaries on a
consolidated basis (including, but not limited to, (i) imputed interest included
in Capitalized Lease Obligations, (ii) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing, (iii) the net costs associated with Interest Rate Agreements and
other hedging obligations, (iv) amortization of other financing fees and
expenses, (v) the interest portion of any deferred payment obligation, (vi)
amortization of discount or premium, if any, and (vii) all other non-cash
interest expense (other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all interest
incurred or paid under any guarantee of Indebtedness (including a guarantee of
principal, interest or any combination thereof) of any Person, plus the amount
of all dividends or distributions paid on Disqualified Capital Stock (other than
dividends paid or payable in shares of Capital Stock of an Issuer).
"Consolidated Leverage Ratio" means, with respect to any Person, the ratio of
(i) the sum of the aggregate outstanding amount of Indebtedness of such Person
and its Restricted Subsidiaries as of the date of calculation (the "Transaction
Date") on a consolidated basis determined in accordance with GAAP to (ii)
Annualized EBITDA.
"Consolidated Net Income" means, with respect to any Person, for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (a) the Net Income of any Person (the "other Person") in
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which the Person in question or any of its Restricted Subsidiaries has less than
a 100% interest (which
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interest does not cause the Net Income of such other Person to be consolidated
into the Net Income of the Person in question in accordance with GAAP) shall be
included only to the extent of the amount of dividends or distributions paid to
the Person in question or the Restricted Subsidiary, (b) the Net Income of any
Restricted Subsidiary of the Person in question that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions shall be excluded to the extent of such restriction or limitation,
(c)(i) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition and (ii) any
net gain resulting from an Asset Sale by the Person in question or any of its
Restricted Subsidiaries other than in the ordinary course of business shall be
excluded, (d) extraordinary gains and losses shall be excluded, (e) income or
loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued) shall be excluded, (f) in the case of a successor to
the referent Person by consolidation or merger or as a transferee of the
referent Person's assets, any earnings of the successor corporation prior to
such consolidation, merger or transfer of assets shall be excluded and (g) Net
Income of Phoenix with respect to the Excluded Assets shall be excluded.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 88 Pine
Street, 19th Floor, New York, New York 10005.
"Cumulative Consolidated Interest Expense" means, with respect to any Person,
as of any date of determination, Consolidated Interest Expense from July 1, 1998
to the end of such Person's most recently ended full fiscal quarter prior to
such date, taken as a single accounting period.
"Cumulative EBITDA" means, with respect to any Person, as of any date of
determination, EBITDA from July 1, 1998 to the end of such Person's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Default" means any condition or event that is, or with the passing of time or
giving of any notice expressly required under Section 6.01 (or both) would be,
an Event of Default.
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"Depository" means, with respect to the Notes issued in the form of one or
more Global Notes, The Depository Trust Company or another Person designated as
Depository by the Issuers, which Person must be a clearing agency registered
under the Exchange Act.
"Designation Amount" means an amount equal to the fair market value of an
Issuer's aggregate Investment in a Restricted Subsidiary.
"Discount Notes Collateral" means, collectively, the Stock Collateral and the
LLC Mirror Notes which in the aggregate secure the payment of principal,
interest and premium, if any, on the Notes.
"Disqualified Capital Stock" means any Capital Stock of a Person or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include any Preferred Stock of a Person or a Restricted
Subsidiary of such Person, with respect to either of which, under the terms of
such Preferred Stock, by agreement or otherwise, such Person or Restricted
Subsidiary is obligated to pay current dividends or distributions in cash during
the period prior to the maturity date of the Notes; provided, however, that
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Preferred Stock of a Person or any Restricted Subsidiary thereof that is issued
with the benefit of provisions requiring a change of control offer to be made
for such Preferred Stock in the event of a change of control of such Person or
Restricted Subsidiary which provisions have substantially the same effect as the
provisions described under Section 4.19 hereof, shall not be deemed to be
Disqualified Capital Stock solely by virtue of such provisions.
"EBITDA" means, with respect to any Person and its Restricted Subsidiaries,
for any period, an amount equal to (a) the sum of (i) Consolidated Net Income
for such period, plus (ii) the provision for taxes for such period based on
income or profits to the extent such income or profits were included in
computing Consolidated Net Income and any provision for taxes utilized in
computing net loss under clause (i)
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hereof, plus (iii) Consolidated Interest Expense; provided, however, for
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purposes of this definition only, that dividends or distributions paid on
Disqualified Capital Stock shall not be included in the definition of
Consolidated Interest Expense to the extent such dividends or distributions have
not been included in the computation of Consolidated Net Income 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 non-cash items reducing Consolidated Net Income for such period, minus
(b) all non-cash items increasing Consolidated Net Income for such period, all
for such Person and its Restricted Subsidiaries determined on a consolidated
basis in accordance with GAAP; and provided, however, that, for purposes of
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calculating EBITDA during any fiscal quarter, cash income from a particular
Investment of such Person shall be included only (x) if cash income has been
received by such Person with respect to such Investment during each of the
previous four fiscal quarters, or (y) if the cash income derived from such
Investment is attributable to Cash Equivalents.
"Exchange Act" means the Securities Exchange Act of 1934, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning assigned thereto in the Registration
Rights Agreement.
"Excluded Assets" means (i) any notes and accounts receivable held by Phoenix
and owed by Coaxial Associates of Columbus I ("Columbus I") and Coaxial
Associates of Columbus II ("Columbus II"), and (ii) any debt owed to Phoenix by
its partners as a result of advances made to such partners, in each case as in
effect on the Issue Date.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of an Issuer acting reasonably and
in good faith, and whose determination shall be conclusive and shall be
evidenced by a resolution of the Board of Directors of an Issuer delivered to
the Trustee.
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"GAAP" means generally accepted accounting principles consistently applied as
in effect in the United States on the Issue Date.
"Guarantee" means, as the context may require, individually, a guarantee, or
collectively, any and all guarantees, of the Obligations of the Issuers with
respect to the Notes by each Guarantor, if any, pursuant to the terms of Article
10 hereof, substantially in the form set forth in Exhibit G.
"Guarantor" means each of (i) Insight Ohio and (ii) any Restricted Subsidiary
of an Issuer formed, created or acquired after the Issue Date, and "Guarantors"
means such entities, collectively. Each such entity that becomes a Guarantor
pursuant to clause (ii) above shall follow the procedures described in Section
10.01 hereof.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise 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 other obligation on the balance sheet of such Person (and
"incurrence," "incurred," "incurrable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
--------
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, 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, without limitation, any balances that constitute 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 of such Person, (ii) obligations secured by a lien
to which the
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property or assets owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed, (iii)
guarantees of items of other Persons which would be included within this
definition for such other Persons (whether or not such items would appear upon
the balance sheet of the guarantor), (iv) all obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (v) Disqualified Capital Stock of such Person or any Restricted
Subsidiary thereof, and (vi) obligations of any such Person under any currency
agreement or any interest rate agreement applicable to any of the foregoing (if
and to the extent such currency agreement or interest rate agreement obligations
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP). The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided that (i) the amount outstanding at any time of any Indebtedness issued
- --------
with original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (ii)
Indebtedness shall not include any liability for federal, state, local or other
taxes. Notwithstanding any other provision of the foregoing definition, any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business shall not be deemed to be
"Indebtedness" of an Issuer or any of its Restricted Subsidiaries for purposes
of this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or supplemented from
time to time.
"Independent Financial Advisor" means an investment banking firm of national
reputation in the United States (i) which does not, and whose directors,
officers and employees or Affiliates do not, have a direct or indirect financial
interest in an Issuer and (ii) which, in the judgment of the Board of Directors
of an Issuer, is otherwise independent and qualified to perform the task for
which it is to be engaged.
-14-
"Insight" means, collectively, Insight Communications Company, L.P. and
Insight Holdings of Ohio, LLC.
"Insight Ohio" means Insight Communications of Central Ohio, LLC, a Delaware
limited liability company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501 (a)(1), (2), (3) or
(7) promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means, with respect to any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, with respect of any Person, directly or indirectly, any
advance, account receivable (other than an account receivable arising in the
ordinary course of business of such Person), loan or capital contribution to (by
means of transfers of property to others, payments for property or services for
the account or use of others or otherwise), the purchase of any Capital Stock,
bonds, notes, debentures, partnership or joint venture interests or other
securities (other than the purchase of the Notes pursuant to Section 4.10 hereof
or "Change of Control Offer" described in Section 4.19 hereof) of, the
acquisition, by purchase or otherwise, of all or substantially all of the
business or assets or stock or other evidence of beneficial ownership of, any
Person or the making of any investment in any Person. Investments shall exclude
(i) extensions of trade credit on commercially reasonable terms in accordance
with normal trade practices of such Person and (ii) the repurchase of securities
of any Person by such Person. For the purposes of Section 4.09 hereof, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair market value
of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by an Issuer or any of its Restricted
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Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of cash distributions which constitute a return of capital in
connection with such Investment; provided that the aggregate of all such
--------
reductions shall not exceed the amount of such initial Investment plus the cost
of all additional Investments; provided, further, that no such payment of
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distributions or receipt of any such other amounts shall reduce the amount of
any Investment if such payment of distributions or receipt of any such amounts
would be included in Consolidated Net Income. If an Issuer or any Restricted
Subsidiary of such Issuer sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of such Issuer such that, after giving
effect to any such sale or disposition, the Issuer no longer owns, directly or
indirectly, greater than 50% of the outstanding Common Stock of such Restricted
Subsidiary, the Issuer shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the fair market value of the Common Stock
of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the Issuers and
authenticated by the Trustee under this Indenture.
"Issuer Request" means any written request signed in the names of each of the
Issuers by the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer or the Treasurer of each of the Issuers and attested to
by the Secretary or any Assistant Secretary of each of the Issuers.
"Issuers" means the parties named as such in the first paragraph of this
Indenture until a successor replaces such parties pursuant to Article 5 of this
Indenture and thereafter means the successor and any other obligor on the Notes.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title
-16-
retention agreement having substantially the same economic effect as any of the
foregoing).
"LLC Mirror Notes" means each of the promissory notes of Coaxial DJM LLC and
Coaxial DSM LLC issued to Coaxial LLC.
"Maturity Date" means August 15, 2008.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person for any period, the net income
(loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by or equity
contribution to any Person, the aggregate net proceeds received by such Person,
after payment of expenses, commissions and the like incurred in connection
therewith, whether such proceeds are in cash or in property (valued at the fair
market value thereof, as determined in good faith by the Board of Directors of
such Person, at the time of receipt) and (b) in the case of any exchange,
exercise, conversion or surrender of outstanding securities of any kind for or
into shares of Capital Stock of an Issuer which is not Disqualified Capital
Stock, the net book value of such outstanding securities on the date of such
exchange, exercise, conversion or surrender (plus any additional amount required
to be paid by the holder to such Person upon such exchange, exercise, conversion
or surrender, less any and all payments made to the holders, e.g., on account of
---
fractional shares and less all expenses incurred by such Person in connection
therewith).
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Notes" means the securities that are issued under this Indenture, as amended
or supplemented from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
expenses payable under the documentation governing such Indebtedness.
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"Offering" means the offering of the Notes as described in the Offering
Memorandum.
"Offering Memorandum" means the Offering Memorandum dated August 17, 1998
pursuant to which the Notes were offered.
"Officer," with respect to any Person (other than the Trustee), means the
Chief Executive Officer, the President, any Vice President and the Chief
Financial Officer, the Treasurer or the Secretary of such Person, or any other
officer designated by the Board of Directors of such Person, as the case may be.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, the President or any Vice President and
the Chief Financial Officer or any Treasurer of such Person that shall comply
with applicable provisions of this Indenture and delivered to the Trustee.
"Operating Agreement" means the Operating Agreement of Insight Communications
of Central Ohio, LLC, as in effect on the Issue Date.
"Opinion of Counsel" means a written opinion reasonably satisfactory in form
and substance to the Trustee from legal counsel which counsel is reasonably
acceptable to the Trustee including the statements required by Section 12.05 and
delivered to the Trustee.
"Other Pari Passu Debt" means Indebtedness of a Restricted Subsidiary of an
Issuer that is pari passu in right of payment to the Notes (without giving
---- -----
effect to the principles of structural subordination).
"Other Pari Passu Debt Pro Rata Share" means the amount of the applicable
Available Asset Sale Proceeds obtained by multiplying the amount of such
available Asset Sale Proceeds by a fraction, (i) the numerator of which is the
aggregate principal amount and/or accreted value, as the case may be, of all
Other Pari Passu Debt outstanding at the time of the applicable Asset Sale with
respect to which any Restricted Subsidiary of an Issuer is required to use
Available Asset Proceeds to repay or make an offer to purchase or repay and (ii)
the denominator of which is the sum of (a) the aggregate principal amount of all
Notes outstanding at the time of the applicable Asset Sale and (b) the aggregate
principal amount
-18-
and/or accreted value, as the case may be, of all Other Pari Passu Debt
outstanding at the time of the applicable Asset Sale Offer with respect to which
any Restricted Subsidiary of an Issuer is required to use the applicable
Available Asset Proceeds to offer to repay or make an offer to purchase or
repay.
"Pass Through Dividend" means the dividend required to be made by Coaxial to
Coaxial LLC, Coaxial DJM LLC and Coaxial DSM LLC pursuant to Section 4.25 hereof
from the proceeds of a Preferred Payment in respect of the Series B Preferred
Interests.
"Permitted Holders" means (x) Insight and (y) Coaxial LLC.
"Permitted Indebtedness" means:
(i) Indebtedness of an Issuer or any Restricted Subsidiary arising under
or in connection with the Senior Credit Facility in an aggregate principal
amount not to exceed $25.0 million outstanding at any time less any
mandatory prepayment actually made thereunder (to the extent, in the case
of payments of revolving credit borrowings, that the corresponding
commitments have been permanently reduced) or scheduled payments actually
made thereunder;
(ii) Indebtedness under the Notes, the Exchange Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this definition
which is outstanding on the Issue Date;
(iv) Indebtedness of an Issuer to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to an Issuer or another
Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Purchase Money Indebtedness and Capitalized Lease Obligations do not in the
aggregate exceed $7.5 million;
(vi) Interest Rate Agreements;
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(vii) Refinancing Indebtedness; and
(viii) additional Indebtedness of the Restricted Subsidiaries of the
Issuers not to exceed $7.5 million in aggregate principal amount at any one
time outstanding.
"Permitted Investments" means, for any Person, Investments made after the
Issue Date consisting of:
(i) Investments by an Issuer, or by a Restricted Subsidiary thereof, in
the Issuer or a Restricted Subsidiary;
(ii) Investments by the Issuer, or by a Restricted Subsidiary thereof, in
a Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Issuer or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Issuer or a
Restricted Subsidiary thereof;
(iii) Investments in cash and Cash Equivalents;
(iv) an Investment that is made by an Issuer or a Restricted Subsidiary
thereof in the form of any Capital Stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to an Issuer or such Restricted Subsidiary solely as
partial consideration for the consummation of an Asset Sale that is
otherwise permitted under Section 4.10 hereof;
(v) Interest Rate Agreements entered into in the ordinary course of an
Issuer's or its Restricted Subsidiaries' business; and
(vi) additional Investments not to exceed $500,000 at any one time
outstanding.
"Permitted Liens" means (i) Liens on property or assets of, or any shares
of Capital Stock of or secured indebtedness of, any corporation existing at the
time such corporation becomes a Restricted Subsidiary of an Issuer or at the
time such corporation is merged into an Issuer or any of its Restricted
Subsidiaries; provided that such Liens are not incurred in connection with, or
--------
in contemplation of, such
-20-
corporation becoming a Restricted Subsidiary of an Issuer or merging into an
Issuer or any of its Restricted Subsidiaries, (ii) Liens securing Indebtedness
under the Senior Credit Facility which Indebtedness is incurred pursuant to
clause (i) of the definition of Permitted Indebtedness, (iii) Liens securing
Refinancing Indebtedness; provided that any such Lien does not extend to or
--------
cover any Property, Capital Stock or Indebtedness other than the Property,
shares or debt securing the Indebtedness so refunded, refinanced or extended,
(iv) Liens in favor of an Issuer or any of its Restricted Subsidiaries, (v)
Liens securing industrial revenue bonds, (vi) Liens to secure Purchase Money
Indebtedness that is otherwise permitted under this Indenture; provided that (a)
--------
any such Lien is created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and other direct costs
of, and other direct expenses paid or charged in connection with, such purchase
or construction) of such Property, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such costs, and (c) such Lien does
not extend to or cover any Property other than such item of Property and any
improvements on such item, (vii) statutory liens or landlords', carriers',
warehouseman's, mechanics', suppliers', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business which do not secure any
Indebtedness and with respect to amounts not yet delinquent or being contested
in good faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor, (viii) Liens for taxes, assessments or governmental charges that
are being contested in good faith by appropriate proceedings or are not yet
delinquent, (ix) Liens securing Capitalized Lease Obligations permitted to be
incurred under clause (v) of the definition of "Permitted Indebtedness";
provided that such Lien does not extend to any property other than that subject
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to the underlying lease, (x) easements, rights-of-way, zoning restrictions and
other similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the business of
the Issuer or any of its Restricted Subsidiaries, (xi) Liens securing
obligations under Interest Rate Agreements, (xii) attachment or judgment Liens
not giving rise to a Default or an Event of Default, (xiii) other Liens securing
obligations incurred in the ordinary course of business; provided, that such
--------
Liens do not serve Indebtedness incurred pursuant to the first paragraph of
Section 4.06 hereof, (xiv) liens securing
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the Senior Notes Collateral and the Discount Notes Collateral and (xv) any
extensions, substitutions, replacements or renewals of the foregoing.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Phoenix" means Phoenix Associates, a Florida general partnership.
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A.
"Pledge Agreement" means that certain pledge agreement between Coaxial
LLC and the Trustee, whereby Coaxial LLC will pledge to the Trustee for the
benefit of the holders of the Notes (i) all the Common Stock of Coaxial owned by
Coaxial LLC on the Issue Date or so acquired by Coaxial LLC thereafter and (ii)
an assignment of the pledge of all the shares of Common Stock in Coaxial held by
Coaxial DJM LLC and Coaxial DSM LLC which shares have been pledged to Coaxial
LLC and (iii) the LLC Mirror Notes, all of which constitute the Discount Notes
Collateral. Such pledge will secure the payment and performance when due of all
the obligations of the Issuers under this Indenture and the Notes.
"Preferred Interests" means collectively the Series A Preferred Interests
and the Series B Preferred Interests.
"Preferred Payments" means any distribution or mandatory redemption
required to be made to the holder of the Preferred Interests pursuant to the
Operating Agreement.
"Preferred Stock" means any Capital Stock of 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 Capital Stock issued by such Person.
"Private Exchange Notes" shall have the meaning assigned thereto in the
Registration Rights Agreement.
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"Private Placement Legend" means the legend initially set forth on the
Rule 144A Notes in the form set forth in Exhibit B.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be redeemed means
the date fixed for such redemption pursuant to the terms of the Notes.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of an Issuer outstanding on the Issue Date or other
Indebtedness permitted to be incurred by an Issuer or its Restricted
Subsidiaries pursuant to the terms of this Indenture (other than pursuant to
clauses (i), (iv), (v), (vi), (vii) and (viii) of the definition of Permitted
Indebtedness), but only to the extent that (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness
is scheduled to mature either (a) no earlier than the Indebtedness being
refunded, refinanced or extended, or (b) after the maturity date of the Notes,
(iii) the portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the maturity date of the Notes has a weighted average life
to maturity at the time such Refinancing Indebtedness is incurred that is equal
to or greater than the weighted average life to maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the Notes, (iv) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less
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than the sum of (a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended and the amount of any
premium reasonably necessary to accomplish such refinancing, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended and (c) the amount of customary fees, expenses and costs
related to the incurrence of such Refinancing Indebtedness, and (v) such
Refinancing Indebtedness is incurred by the same Person that initially incurred
the Indebtedness being refunded, refinanced or extended.
"Registration Rights Agreement" means the Discount Notes Registration
Rights Agreement dated as of August 21, 1998 among the Issuers, Insight Ohio, as
a Guarantor, and CIBC Oppenheimer Corp., as Initial Purchaser.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Related Business" means any business related, ancillary or complementary
to the businesses of the Senior Notes Issuers and their Restricted Subsidiaries.
"Related Business Assets" means assets used or useful in a Related
Business.
"Reported Period" means with respect to any Person the most recently
ended full fiscal quarter.
"Responsible Officer" when used with respect to the Trustee, means an
officer or assistant officer assigned to the corporate trust department of the
Trustee (or any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
an Issuer or any Restricted Subsidiary of an Issuer or any payment made to the
direct or indirect holders (in their capacities as such) of Capital Stock of an
Issuer or any Restricted Subsidiary of an
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Issuer (other than (x) dividends or distributions payable solely in Capital
Stock (other than Disqualified Capital Stock) or in options, warrants or other
rights to purchase such Capital Stock (other than Disqualified Capital Stock),
and (y) in the case of Restricted Subsidiaries of an Issuer, dividends or
distributions payable to an Issuer or to a Wholly Owned Subsidiary of an
Issuer), (ii) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of an Issuer or any of its Restricted Subsidiaries
(other than Capital Stock owned by an Issuer or a Restricted Subsidiary of an
Issuer, excluding Disqualified Capital Stock) or any option, warrants or other
rights to purchase such Capital Stock, (iii) the making of any principal payment
on, or the purchase, defeasance, repurchase, redemption or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Indebtedness which is subordinated in
right of payment to the Notes (other than subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition), (iv) the making of any Investment or guarantee of any Investment
in any Person other than a Permitted Investment, (v) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary on the basis of the
Investment by an Issuer therein and (vi) forgiveness of any Indebtedness of an
Affiliate of an Issuer to an Issuer or a Restricted Subsidiary of an Issuer. For
purposes of determining the amount expected for Restricted Payments, cash
distributed or invested shall be valued at the face amount thereof and property
other than cash shall be valued at its Fair Market Value.
"Restricted Subsidiary" means a Subsidiary of an Issuer other than an
Unrestricted Subsidiary and includes (i) all of the Subsidiaries of an Issuer
existing as of the Issue Date, (ii) Insight Ohio and (iii) Phoenix. The Board
of Directors of an Issuer may designate any Unrestricted Subsidiary or any
Person that is to become a Subsidiary as a Restricted Subsidiary if immediately
after giving effect to such action (and treating any Acquired Indebtedness as
having been incurred at the time of such action), (i) the Issuers could have
incurred at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.06 hereof and (ii) no Default or Event of
Default shall have occurred and be continuing.
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"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by an Issuer or any Restricted Subsidiary of an Issuer
of any real or tangible personal property, which property has been or is to be
sold or transferred by an Issuer or such Restricted Subsidiary to such Person in
contemplation of such leasing.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc., and its successors.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit Agreement to be entered into
between Insight Ohio, the lenders party thereto in their capacities as lenders
thereunder and Canadian Imperial Bank of Commerce, as agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder (provided that such
--------
increase in borrowings is permitted by Section 4.06 hereof) or adding Restricted
Subsidiaries of the Issuer as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Senior Notes" means $140,000,000 aggregate principal amount of 10%
Senior Notes due 2006 of Coaxial and Phoenix, as joint issuers.
"Senior Notes Collateral" means the Series A Preferred Interests which
secure the payment of principal, interest and premium, if any, on the Senior
Notes.
-26-
"Senior Notes Guarantees" means the guarantees of the Senior Notes made
in accordance with the Senior Notes Indenture.
"Senior Notes Indenture" means the indenture pursuant to which the Senior
Notes were issued.
"Senior Notes Issuers" means Coaxial and Phoenix.
"Series A Preferred Interests" means the Series A Preferred Interests of
Insight Ohio with a liquidation preference of $140.0 million.
"Series B Preferred Interests" means the Series B Preferred Interests of
Insight Ohio with an initial liquidation preference of $30.0 million.
"Stock Collateral" means (i) all the shares of Common Stock of Coaxial
owed by Coaxial LLC and (ii) all of Coaxial LLC's interests in the shares of
Common Stock in Coaxial held by Coaxial DJM LLC and Coaxial DSM LLC which shares
have been pledged to Coaxial LLC.
"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 Capital Stock 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 or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Tax Distributions" means (i) the distributions required to be made by
Insight Ohio to its members, pursuant to the Operating Agreement, equal to the
estimated taxes (assuming taxes are imposed based on the highest marginal
combined federal, state, and local tax rate imposed on an individual resident of
New York City) of such members arising from the allocation of income of Insight
Ohio to such members, (ii) distributions made by Coaxial to Coaxial LLC, Coaxial
DJM LLC
-27-
and Coaxial DSM LLC of Tax Distributions received from Insight Ohio and (iii)
distributions made by Coaxial LLC, Coaxial DJM LLC and Coaxial DSM LLC to their
members of Tax Distributions received from Coaxial.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of an Issuer which is designated (a
"Designation") after the Issue Date as an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of an Issuer; provided that a
--------
Subsidiary may be so Designated as an Unrestricted Subsidiary only if such
classification is in compliance with Section 4.09 hereof. The Trustee shall be
given prompt notice by an Issuer of each resolution adopted by the Board of
Directors of an Issuer under this provision, together with a copy of each such
resolution adopted.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
--------
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
-28-
"Wholly Owned Subsidiary" means (i) Coaxial, (ii) Insight Ohio and (iii)
any Restricted Subsidiary, all of the outstanding voting securities (other than
directors' qualifying shares) of which are owned, directly or indirectly
(including through Coaxial or Insight Ohio), by an Issuer.
Section 1.02. Other Definitions.
-----------------
The definitions of the following terms may be found in the sections indicated
as follows:
Term Defined in Section
- ---- ------------------
"Affiliate Transaction"............. 4.11
"Agent Members"..................... 2.16
"Bankruptcy Law".................... 6.01
"Business Day"...................... 12.08
"CEDEL"............................. 2.16
"Change of Control Offer"........... 4.19
"Change of Control Payment Date".... 4.19
"Change of Control Purchase Price".. 4.19
"Covenant Defeasance"............... 9.03
"Custodian"......................... 6.01
"Euroclear"......................... 2.16(a)
"Event of Default".................. 6.01
"Excess Proceeds Offer"............. 4.10
"Global Notes"...................... 2.16
"Legal Defeasance".................. 9.02
"Legal Holiday"..................... 12.08
"Other Notes"....................... 2.02
"Paying Agent"...................... 2.04
"Registrar"......................... 2.04
"Regulation S Global Notes"......... 2.16(a)
"Regulation S Notes"................ 2.02
"Representative".................... 11.03
"Restricted Global Note"............ 2.16(a)
"Rule 144A Notes"................... 2.02
Section 1.03. Incorporation by Reference of Trust Indenture Act.
--------------
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this
-29-
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Issuers, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) words used herein implying any gender shall apply to every gender;
and
(6) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
-30-
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes.
---------------
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount at maturity of $55,869,000, upon a
written order of the Issuers in the form of an Officers' Certificate of the
Issuers. Such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated.
Upon receipt of an Issuer Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective and that the conditions
precedent to a private exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount at
maturity not to exceed $55,869,000 for issuance in exchange for the Notes
tendered for exchange pursuant to such exchange offer registered under the
Securities Act not bearing the Private Placement Legend or pursuant to a Private
Exchange. Exchange Notes or Private Exchange Notes may have such distinctive
series designations and such changes in the form thereof as are specified in the
Issuer Request referred to in the preceding sentence.
Section 2.02. Form and Dating.
---------------
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form set forth in Exhibit A, which is
---------
incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Issuers are subject. Any such notations, legends or endorsements shall be
furnished to the Trustee in writing. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the legend and include the form of
assignment set forth in Exhibit B, Notes offered and sold in offshore
---------
transactions in reliance on Regulation S ("Regulation S Notes") shall bear the
legend and include the form of assignment set forth in Exhibit C, and Notes
---------
offered and sold to Institutional
-31-
Accredited Investors in transactions exempt from registration under the
Securities Act not made in reliance on Rule 144A or Regulation S ("Other Notes")
shall be represented by Physical Notes bearing the Private Placement Legend.
Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes shall constitute, and
are expressly made, a part of this Indenture and, to the extent applicable, the
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound thereby.
The Notes may be presented for registration of
transfer and exchange at the offices of the Registrar.
Section 2.03. Execution and Authentication.
----------------------------
Two Officers shall sign, or one Officer shall sign and one Officer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for each of the Issuers by manual
or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Issuers, and the Issuers shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuers to authenticate the Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so.
-32-
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuers and Affiliates of the Issuers. Each Paying Agent
is designated as an authenticating agent for purposes of this Indenture.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
Section 2.04. Registrar and Paying Agent.
--------------------------
The Issuers shall maintain an office or agency (which shall be located
in the Borough of Manhattan in The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuers, if any, in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Issuers may have one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent. Neither the Issuers
nor any Affiliate thereof may act as Paying Agent. The Issuers may change any
Paying Agent or Registrar without notice to any noteholder.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuers shall notify the Trustee of the name and
address of any such Agent. If the Issuers fail to maintain a Registrar or
Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such and shall be entitled to compensation in accordance with Section 7.07.
The Issuers initially appoint the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes and
this Indenture.
Section 2.05. Paying Agent to Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of the
noteholders or the Trustee all money held by the Paying Agent for the payment of
Accreted Value of or principal of or premium or interest on the Notes (whether
such money has been
-33-
paid to it by the Issuers or any other obligor on the Notes), and the Issuers
and the Paying Agent shall notify the Trustee of any default by the Issuers (or
any other obligor on the Notes) in making any such payment. Money held in trust
by the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Issuers at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any Event of Default specified
in Section 6.01(1) or (2), upon written request to the Paying Agent, require
such Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 2.06. noteholder 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
the noteholders. If the Trustee is not the Registrar, the Issuers shall furnish
to the Trustee 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 the noteholders.
Section 2.07. Transfer and Exchange.
---------------------
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(a) of the New York Uniform Commercial Code are
met. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuers shall issue and execute
and the Trustee shall authenticate new Notes evidencing such transfer or
exchange at the Registrar's request. No service charge shall be made to the
noteholder for any registration of transfer or exchange. The Registrar may
require from the noteholder payment of a sum sufficient to cover any transfer
taxes or other governmental charge that may be
-34-
imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.06, 4.10, 4.19 or 8.05 (in
which events the Issuers shall be responsible for the payment of such taxes).
The Registrar shall not be required to exchange or register a transfer of any
Note for a period of 15 days immediately preceding the selection of Notes to be
redeemed or any Note selected for redemption.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuers and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Note in violation of any provision of this Indenture and/or
applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Issuers' compliance with or have
any responsibility with respect to the Issuers' compliance with any Federal or
state securities laws.
Section 2.08. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Registrar or the Trustee, or
if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Issuers shall issue and the Trustee shall authenticate a
replacement Note if the Holder of such Note furnishes to the Issuers and the
Trustee evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note and if the requirements of Section 8-405
of the New York Uniform Commercial Code as in effect on the date of this
Indenture are met. If required by the Trustee or the Issuers, an indemnity bond
shall be posted, sufficient in the judgment of both to protect the Issuers, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Issuers may charge such Holder for the Issuers'
reasonable out-of-pocket expenses in replacing such Note and the Trustee may
charge the Issuers for the Trustee's expenses (including, without limitation,
attorneys' fees and disbursements) in replacing such Note. Every
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replacement Note shall constitute an additional contractual obligation of the
Issuers.
Section 2.09. Outstanding Notes.
-----------------
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because an Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives written notice that the replaced Note is
held by a bona fide purchaser in whose hands such Note is a legal, valid and
binding obligation of the Issuers.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and principal with respect to the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Section 2.10. Treasury Notes.
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by an Issuer or any Affiliate of an Issuer shall be
disregarded as though they were not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
declaration, notice, direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes are
so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes the pledgee's
right so to act with respect to the Notes and that the pledgee is not either of
the
-36-
Issuers, any other obligor or guarantor on the Notes or any of their respective
Affiliates.
Section 2.11. Temporary Notes.
---------------
Until definitive Notes are prepared and ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Issuers consider appropriate for temporary Notes.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.12. Cancellation.
------------
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the record-
retention requirements of the Exchange Act) dispose of cancelled Notes in
accordance with its standard disposition policies in effect at the time. The
Issuers may not reissue or resell, or issue new Notes to replace, Notes that the
Issuers have redeemed or paid, or that have been delivered to the Trustee for
cancellation.
Section 2.13. Defaulted Interest.
------------------
If the Issuers default on a payment of interest on the Notes, they
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the payment date. The
Issuers shall fix such special record date and payment date and provide the
Trustee at least 20 days notice of the proposed amount of defaulted interest to
be paid and the special payment date and at the same time the Issuers shall
deposit with the Trustee the aggregate amount proposed to be paid in respect of
such defaulted interest. At least 15 days before such special record date, the
Issuers shall mail to each noteholder a notice that states the special record
date, the payment date and the
-37-
amount of defaulted interest, and interest payable on defaulted interest, if
any, to be paid. The Issuers may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of
any securities exchange on which the Notes may be listed and, upon such notice
as may be required by such exchange, if, after written notice given by the
Issuers to the Trustee of the proposed payment pursuant to this sentence, such
manner of payment shall be deemed practicable by the Trustee.
Section 2.14. CUSIP Number.
------------
The Issuers in issuing the Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
--------
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuers shall
promptly notify the Trustee of any such CUSIP number used by the Issuers in
connection with the issuance of the Notes and of any change in the CUSIP number.
Section 2.15. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Issuers shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall
be payable at the office of the Paying Agent.
Section 2.16. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) Rule 144A Notes initially shall be represented by one or more
notes in registered, global form without interest coupons (collectively, the
"Restricted Global Note"). Regulation S Notes initially shall be represented by
one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the
-38-
"Global Notes"). The Global Notes shall bear legends as set forth in Exhibit D.
---------
The Global Notes initially shall (i) be registered in the name of the Depository
or the nominee of such Depository, in each case for credit to an account of an
Agent Member (or, in the case of the Regulation S Global Notes, of Euroclear
System ("Euroclear") and Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B with respect to Restricted Global Notes and Exhibit C with respect to
- --------- ---------
Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trustee or any agent of the Issuers
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 governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Issuers that it is unwilling or unable to continue as depository for such Global
Note and the Issuers thereupon fail to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Issuers, at their option, notify the Trustee in writing that they elect to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with
its customary procedures).
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuers
shall execute, and the Trustee shall upon receipt of a written order from the
Issuers authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuers shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in writing in exchange for its beneficial interest
in the Global Notes, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Rule 144A Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Issuers
---------
determine otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement
of the offering of the Notes represented by a Regulation S Global Note and the
original issue date of such Notes (such period through and including such 40th
day, the "Restricted Period"), a beneficial interest in the Regulation S Global
Note may be held only through Euroclear or CEDEL, as indirect participants in
DTC, unless transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note, only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person who the transferor reasonably believes
is a Qualified Institutional Buyer in a transaction meeting the requirements of
Rule 144A or (b) pursuant to another exemption from the registration
requirements under the Securities Act which is accompanied by an Opinion of
Counsel regarding the availability of such exemption and (ii) in accordance with
all applicable securities laws of any state of the United States or any other
jurisdiction.
-40-
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 2.17. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
---------------------------------------------------------------
U.S. Persons. The following provisions shall apply with respect to the
- ------------
registration of any proposed transfer of a Note constituting a Rule 144A Note to
any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note constituting a
Rule 144A Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after August 15, 1999 or such
other date as such Note shall be freely transferable under Rule 144 as
certified in an Officer's Certificate or (y) (1) in the case of a transfer
to an Institutional Accredited Investor which is not a QIB (excluding Non-
U.S. Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit E hereto or (2) in the
---------
case of a transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit F hereto;
---------
-41-
provided that in the case of a transfer of a Note bearing the Private
--------
Placement Legend for a Note not bearing the Private Placement Legend, the
Registrar has received an Officers' Certificate authorizing such transfer;
and
(ii) if the proposed transferor is an Agent Member holding a beneficial
interest in a Global Note, upon receipt by the Registrar of (x) the
certificate, if any, required by paragraph (i) above and (y) instructions
given in accordance with the Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuers shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed registration of transfer of a Note
constituting a Rule 144A Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on such
Holder's Note stating, or has otherwise advised the Issuers and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on such Holder's Note stating, or has otherwise advised the
Issuers and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuers as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing
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representations in order to claim the exemption from registration provided
by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Restricted Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Restricted
Global Note in an amount equal to the principal amount of the Physical
Notes to be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) it has received the Officers' Certificate
required by paragraph (a)(i)(x) of this Section 2.17, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Issuers to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (iii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officers'
Certificate from the Issuers to such effect.
(d) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. The Issuers shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable notice to the Registrar.
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Section 2.18. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360 day year
of twelve 30 day months.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
------------------
If the Issuers elect to redeem Notes pursuant to paragraph 5 of the
Notes, at least 45 days prior to the Redemption Date or such shorter period as
the Trustee may agree to (which agreement shall not unreasonably be withheld)
the Issuers shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the redemption price, and deliver
to the Trustee an Officers' Certificate stating that such redemption will comply
with the conditions contained in paragraph 5 of the Notes, as appropriate.
Section 3.02. Selection by Trustee of Notes to BeRedeemed.
---------
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed, if the Notes are listed on a
national securities exchange, in accordance with the rules of such exchange or,
if the Notes are not so listed, either on a pro rata basis or by lot, or such
other method as it shall deem fair and equitable. The Trustee shall promptly
notify the Issuers of the Notes selected for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be
redeemed. The Trustee may select for redemption portions of the principal of
the Notes that have denominations larger than $1,000. Notes and portions
thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole
multiples of $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
--------------------
At least 30 days, and no more than 60 days, before a Redemption Date,
the Issuers shall mail, or cause to be mailed, a
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notice of redemption by first-class mail to each Holder of Notes to be redeemed
at his or her last address as the same appears on the registry books maintained
by the Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be
redeemed (including the CUSIP numbers thereof) and shall state:
(1) the Redemption Date and the amount of premium and accrued interest to
be paid;
(2) the redemption price and the amount of premium and accrued interest
to be paid;
(3) if any Note is being redeemed in part, the portion of the Accreted
Value or the principal amount of such Note to be redeemed and that, after
the Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Issuers default in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
(7) the provision of paragraph 5 of the Notes pursuant to which the Notes
called for redemption are being redeemed; and
(8) the aggregate principal amount at maturity of Notes that are being
redeemed.
At the Issuers' written request made at least five Business Days prior
to the date on which notice is to be given, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' sole expense.
Section 3.04. Effect of Notice of Redemption.
------------------------------
-45-
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid
at the redemption price, including any premium, plus interest accrued to the
Redemption Date, provided that if the Redemption Date is after a regular record
--------
date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date, and provided, further, that if a Redemption Date is a Legal Holiday,
-------- -------
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 a.m., New York City time, on each Redemption
Date, the Issuers shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuers to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph, the Notes
called for redemption will cease to accrue interest and the only right of the
Holders of such Notes will be to receive payment of the redemption price of and,
subject to the first proviso in Section 3.04, accrued and unpaid interest on
such Notes to the Redemption Date. If any Note surrendered for redemption shall
not be so paid because money sufficient to pay the redemption price shall not
have been made available, interest will be paid, from the Redemption Date until
such redemption payment is made, on the unpaid principal of the Note and any
interest not paid on such unpaid principal, in each case, at the rate and in the
manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
----------------
The Issuers shall pay the principal of and interest (including all
Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes, the Registration
Rights Agreement and this Indenture. An installment of principal or interest
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay such installment.
The Issuers shall pay interest on overdue principal (including post-
petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
-----------
(a) The Issuers will file with the SEC all information, documents and
reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act whether or not the Issuers are required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act unless the SEC does not permit such
filing. The Issuers (at their own expense) will file with the Trustee within 15
days after they file them with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Issuers file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Upon qualification of this Indenture under the TIA, the Issuers shall also
comply with the provisions of TIA (S) 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuers' compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
(b) At the Issuers' expense, regardless of whether the Issuers are
required to furnish such reports and other
-47-
information referred to in paragraph (a) above to their equityholders pursuant
to the Exchange Act, the Issuers shall cause such reports and other information
to be mailed to the Holders at their addresses appearing in the register of
Notes maintained by the Registrar within 15 days after they file them with the
SEC.
(c) The Issuers shall, upon request, provide to any Holder of Notes
or any prospective transferee of any such Holder any information concerning the
Issuers (including financial statements) necessary in order to permit such
Holder to sell or transfer Notes in compliance with Rule 144A under the
Securities Act; provided, however, that the Issuers shall not be required to
-------- -------
furnish such information in connection with any request made on or after the
date which is two years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Issuers or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Issuers
within the meaning of Rule 144 under the Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Issuers covenant (to the extent that they may lawfully do so) that
they shall not at any time insist upon, or plead (as a defense or otherwise) or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Issuers from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that they may lawfully do so)
the Issuers hereby expressly waive all benefit or advantage of any such law, and
covenant that they will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
----------------------
(a) The Issuers shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate (one of the signers on
behalf of each of the Issuers of which shall be the principal executive officer,
principal financial officer or principal accounting officer of such Issuer)
stating that (i) the Issuers have obtained an Opinion of Counsel relating to the
validity and perfection of the security interests
-48-
granted pursuant to the Pledge Agreement and (ii) a review of the activities of
the Issuers and their Subsidiaries during such fiscal year has been made under
the supervision of the signing Officers with a view to determining whether the
Issuers have kept, observed, performed and fulfilled their obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Issuers have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and are not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred and is continuing, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Issuers are
taking or propose to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuers are taking or propose to take with respect thereto.
(b) The Issuers will, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Issuers are taking or propose to take with
respect thereto.
(c) The Issuers' fiscal year currently ends on December 31. The
Issuers will provide notice to the Trustee of any change in their fiscal year.
Section 4.05. Taxes.
-----
The Issuers shall, and shall cause each of their Subsidiaries to, pay
prior to delinquency all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings.
Section 4.06. Limitation on Additional Indebtedness.
-------------------------------------
The Issuers will not, and will not permit any of their Restricted
Subsidiaries to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness); provided that if no Default or Event of
--------
Default shall have occurred and be continuing at the time or as a consequence of
the incurrence of such Indebtedness, Insight Ohio or any of the
-49-
Issuers' Restricted Subsidiaries (other than Coaxial) may incur Indebtedness
(including Acquired Indebtedness) if after giving effect to the incurrence of
such Indebtedness and the receipt and application of the proceeds thereof, the
Consolidated Leverage Ratio of the Issuers is less than 8 to 1 if the
Indebtedness is incurred on or prior to August 15, 2000 and less than 7 to 1 if
the Indebtedness is incurred thereafter. The accretion of original issue
discount on the Notes shall not be deemed an incurrence of Indebtedness for
purposes of this covenant.
Notwithstanding the foregoing, Insight Ohio and the Issuers'
Restricted Subsidiaries may incur Permitted Indebtedness and Coaxial and Phoenix
may incur Indebtedness evidenced by the Senior Notes; provided that the Issuers
--------
will not incur any Permitted Indebtedness that ranks junior in right of payment
to the Notes that has a maturity or mandatory sinking fund payment prior to the
maturity of the Notes.
The Issuers will not, and will not permit any of their Restricted
Subsidiaries to, incur any Indebtedness which by its terms (or by the terms of
any agreement governing such Indebtedness) is subordinated in right of payment
to any other Indebtedness of the Issuers or such Restricted Subsidiary unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate in right of payment to
the Notes or the Guarantee of such Guarantor, as the case may be, pursuant to
subordination provisions that are substantively identical to the subordination
provisions of such Indebtedness (or such agreement) that are most favorable to
the holders of any other Indebtedness of the Issuers or such Restricted
Subsidiary, as the case may be.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness or is entitled to be incurred pursuant to
the first paragraph of this covenant, the Issuers shall, in their sole
discretion, classify such item of Indebtedness in any manner that complies with
this Section 4.06 and such item of Indebtedness shall be treated as having been
incurred pursuant to only one of such clauses or pursuant to the first paragraph
hereof.
Section 4.07. Enforcement of Rights.
---------------------
In the event that the Series B Preferred Interests become mandatorily
redeemable, the Issuers will cause Coaxial to
-50-
exercise all rights and remedies available to enforce Coaxial's rights with
respect to the Series B Preferred Interests.
Section 4.08. Limitation on Capital Stock of
Restricted Subsidiaries.
------------------------
The Issuers will not (i) sell, pledge, hypothecate or otherwise convey
or dispose of any Capital Stock of a Restricted Subsidiary of an Issuer (other
than under the Senior Credit Facility, pursuant to the pledge agreement relating
to the Senior Notes or pursuant to the Pledge Agreement) or (ii) permit any of
their Restricted Subsidiaries to issue any Capital Stock, other than to an
Issuer or a Wholly Owned Subsidiary of an Issuer, provided that Insight Ohio may
--------
issue additional common membership interests to Insight in consideration of
capital contributions made by Insight. The foregoing restrictions shall not
apply to an Asset Sale made in compliance with Section 4.10 hereof or the
issuance of Preferred Stock in compliance with Section 4.23 hereof.
Section 4.09. Limitation on Restricted Payments.
---------------------------------
The Issuers will not make, and will not permit any of their Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be continuing
at the time of or immediately after giving effect to such Restricted
Payment;
(b) immediately after giving pro forma effect to such Restricted
--- -----
Payment, Insight Ohio and the Issuers' Restricted Subsidiaries could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under
Section 4.06 hereof; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Issuers' Cumulative EBITDA minus
1.4 times the Cumulative Consolidated Interest Expense of the Issuers, (2)
100% of the aggregate Net Proceeds received by an Issuer from the issue or
sale after the Issue Date of Capital Stock (other than Disqualified Capital
Stock or Capital Stock of an Issuer issued to any Subsidiary of an Issuer)
of an Issuer or any Indebtedness or other securities of an Issuer
convertible into or exercisable or exchangeable
-51-
for Capital Stock (other than Disqualified Capital Stock) of an Issuer
which has been so converted, exercised or exchanged, as the case may be,
(3) without duplication of any amounts included in clause (c)(2) above,
100% of the aggregate Net Proceeds received by an Issuer from any equity
contribution from a holder of an Issuer's Capital Stock, (4) in the case of
the disposition or repayment of any Investment constituting a Restricted
Payment made after the Issue Date, an amount (to the extent not included in
the computation of Consolidated Net Income) equal to the lesser of: (x)
the return of capital with respect to such Investment and (y) the amount of
such Investment which was treated as a Restricted Payment, in either case,
less the cost of the disposition of such Investment and (5) so long as the
Designation Amount thereof was treated as a Restricted Payment made after
the Issue Date, with respect to any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary after the Issue Date in accordance
with the provisions of this Indenture, an Issuer's proportionate interest
in an amount equal to the excess of (x) the total assets of such
Subsidiary, valued on an aggregate basis at fair market value, over (y) the
total liabilities of such Subsidiary, determined in accordance with GAAP
(and provided that such amount shall not in any case exceed the Designation
--------
Amount with respect to such Restricted Subsidiary upon its Designation).
For purposes of determining under this clause (c) the amount expended for
Restricted Payments, cash distributed shall be valued at the face amount
thereof and property other than cash shall be valued at its fair market
value.
The provisions of this covenant shall not prohibit (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of this
Indenture, (ii) the repurchase, redemption or other acquisition or retirement of
any shares of Capital Stock of an Issuer or Indebtedness subordinated to the
Notes by conversion into, or by or in exchange for, shares of Capital Stock of
an Issuer (other than Disqualified Capital Stock), or out of the Net Proceeds of
the substantially concurrent sale (other than to a Subsidiary of an Issuer) of
other shares of Capital Stock of an Issuer (other than Disqualified Capital
Stock); provided, however, that any such Net Proceeds or the value of any
-------- -------
Capital Stock issued in exchange for such shares or Indebtedness are excluded
from clause (c)(2) of the preceding paragraph (and were not included therein at
any time), (iii) the redemption or retirement of
-52-
Indebtedness of an Issuer subordinated to the Notes in exchange for, by
conversion into, or out of the Net Proceeds of, a substantially concurrent sale
or incurrence of Indebtedness of an Issuer (other than any Indebtedness owed to
a Subsidiary) that is contractually subordinated in right of payment to the
Notes to at least the same extent as the Indebtedness being redeemed or retired,
(iv) the retirement of any shares of Disqualified Capital Stock of an Issuer by
conversion into, or by exchange for, shares of Disqualified Capital Stock of an
Issuer, or out of the Net Proceeds of the substantially concurrent sale (other
than to a Subsidiary of an Issuer) of other shares of Disqualified Capital Stock
of an Issuer; provided, however, that any such Net Proceeds or the value of any
-------- -------
Capital Stock issued in exchange for such shares are excluded from clause (c)(2)
of the preceding paragraph (and were not included therein at any time), (v)
whether or not a Default or Event of Default shall have occurred and be
continuing or occur immediately after giving effect thereto, in amounts
necessary to make payments on the Notes and the Discount Notes (x) Preferred
Payments from Insight Ohio and (y) Pass Through Dividends by Coaxial, (vi)
except if a Default or Event of Default shall have occurred and be continuing,
Tax Distributions, (vii) management fees and reimbursement of expenses payable
to Insight pursuant to the Operating Agreement provided that (i) the Issuers and
--------
their Restricted Subsidiaries could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06 hereof and
(ii) no Default or Event of Default shall have occurred and be continuing in the
case of both clauses (i) and (ii) of this clause (vii) at (x) the time of
payment of such management fee and (y) at the Reported Period, (viii) the
purchase of the Notes pursuant to Sections 4.10, 4.19 and 4.24 hereof and (ix)
the distribution by Phoenix of any of the Excluded Assets; provided that in
--------
calculating the aggregate amount of Restricted Payments made subsequent to the
Issue Date for purposes of clause (c) of the immediately preceding paragraph,
amounts expended pursuant to clauses (i), (vi) and (viii) shall be included in
such calculation.
Section 4.10. Limitation on Certain Asset Sales.
---------------------------------
The Issuers will not, and will not permit any of their Restricted Subsidiaries
to, consummate an Asset Sale unless (i) the Issuer or such applicable Restricted
Subsidiary, as the case may be, receives consideration at the time of such sale
or other disposition at least equal to the fair market value of the assets sold
or otherwise disposed of; (ii) not less than 80% of the consideration received
by an Issuer or such applicable
-53-
Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided, however, that the amount of any (x) Indebtedness of an
-------- -------
Issuer or any Restricted Subsidiary that is actually assumed by the transferee
in such Asset Sale and from which an Issuer and the Restricted Subsidiaries are
fully released shall be deemed to be cash for purposes of determining the
percentage of cash consideration received by an Issuer or the Restricted
Subsidiaries and (y) notes or other similar obligations received by an Issuer or
the Restricted Subsidiaries from such transferee that are immediately converted,
sold or exchanged (or are converted, sold or exchanged within 30 days of the
related Asset Sale) by an Issuer or the Restricted Subsidiaries into cash shall
be deemed to be cash, in an amount equal to the net cash proceeds realized upon
such conversion, sale or exchange for purposes of determining the percentage of
cash consideration received by an Issuer or the Restricted Subsidiaries; and
(iii) the Asset Sale Proceeds received by an Issuer or such Restricted
Subsidiary are applied (a) to the extent an Issuer or any such Restricted
Subsidiary, as the case may be, elects, or is required, to prepay, repay or
purchase indebtedness under the Senior Credit Facility or Senior Notes within
180 days following the receipt of the Asset Sale Proceeds from any Asset Sale;
provided that any such repayment shall result in a permanent reduction of the
- --------
commitments thereunder (other than commitments under a revolving credit
facility) in an amount equal to the principal amount so repaid; or (b) to the
extent of the balance of Asset Sale Proceeds, after application, if any, as
described above, to the extent the Issuers elect, on a pro rata basis to the
--- ----
repayment of an amount of Other Pari Passu Debt not exceeding the Other Pari
Passu Debt Pro Rata Share (provided that any such repayment shall result in a
--------
permanent reduction of any commitment in respect thereof in an amount equal to
the principal amount so repaid) within 180 days following the receipt of the
Asset Sale Proceeds from any Asset Sale; or (c) to the extent of the balance of
Asset Sale Proceeds after application as described above, to the extent the
Issuers or a Restricted Subsidiary elects, to an investment in assets (including
Capital Stock or other securities purchased in connection with the acquisition
of Capital Stock or property of another Person) used or useful in businesses
similar ancillary, complementary or otherwise related to the business of an
Issuer or any such Restricted Subsidiary as then conducted; provided that (1)
--------
such investment occurs or an Issuer or any such Restricted Subsidiary enters
into contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), within 180 days following
receipt of such Asset Sale Proceeds and (2) Asset Sale Proceeds so
-54-
contractually committed are so applied within 270 days following the receipt of
such Asset Sale Proceeds; and (d) if on such 180th day in the case of clauses
(iii)(a), (iii)(b) and (iii)(c)(1) or on such 270th day in the case of clause
(iii)(c)(2) with respect to any Asset Sale, the Available Asset Sale Proceeds
exceed $10.0 million, the Issuers shall apply an amount equal to the Available
Asset Sale Proceeds to an offer to repurchase the Notes, at a purchase price in
cash equal to (x) 100% of the Accreted Value thereof, if the applicable purchase
date is on or prior to August 15, 2003, or (y) 100% of the principal amount at
maturity thereof together with accrued and unpaid interest, if any, thereon to
the date of purchase, if the purchase date is after August 15, 2003 (an "Excess
Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed, the
Issuers and any such Restricted Subsidiary may retain the portion of the
Available Asset Sale Proceeds not required to repurchase Notes.
If the Issuers are required to make an Excess Proceeds Offer, the Issuers
shall mail, within 75 days following the date specified in clause (iii)(d)
above, a notice to the holders stating, among other things: (1) that such
holders have the right to require the Issuers to apply the Available Asset Sale
Proceeds to repurchase such Notes at a purchase price in cash equal to (x) 100%
of the Accreted Value thereof, if the applicable purchase date is on or prior to
August 15, 2003, or (y) 100% of the principal amount at maturity thereof
together with accrued and unpaid interest, if any, thereon to the date of
purchase, if the purchase date is after August 15, 2003; (2) the purchase date,
which shall be no earlier than 30 days and not later than 45 days from the date
such notice is mailed; (3) the instructions that each holder must follow in
order to have such Notes purchased; and (4) the calculations used in determining
the amount of Available Asset Sale Proceeds to be applied to the purchase of
such Notes.
In the event of the transfer of substantially all of the property and assets
of the Issuers and their Restricted Subsidiaries as an entirety to a Person in a
transaction permitted under Section 5.01 hereof, the successor Person shall be
deemed to have sold the properties and assets of the Issuers and their
Restricted Subsidiaries not so transferred for purposes of this Section 4.10,
and shall comply with the provisions of this Section 4.10 with respect to such
deemed sale as if it were an Asset Sale.
-55-
The Issuers will comply with the requirements of Rule 14e-1 under the Exchange
Act and other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of Notes
pursuant to an Excess Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with the "Asset Sale" provisions of this
Indenture, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations under the
"Asset Sale" provisions of this Indenture by virtue thereof.
Section 4.11. Limitation on Transactions with Affiliates.
------------------------------------------
The Issuers will not, and will not permit any of their Restricted Subsidiaries
to, directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any Affiliate
(each an "Affiliate Transaction") or extend, renew, waive or otherwise modify in
any material respect the terms of any Affiliate Transaction entered into prior
to the Issue Date unless (i) such Affiliate Transaction is between or among the
Issuers, or an Issuer and a Restricted Subsidiary of an Issuer; or (ii) the
terms of such Affiliate Transaction are fair and reasonable to an Issuer or such
Restricted Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are substantially similar to the terms which could reasonably be
expected to be obtained by an Issuer or such Restricted Subsidiary, as the case
may be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction (or any series of related
Affiliate Transactions which are similar or part of a common plan) involving an
amount or having a fair market value in excess of $3.0 million which is not
permitted under clause (i) above, an Issuer must obtain a resolution of the
Board of Directors of such Issuer certifying that such Affiliate Transaction
complies with clause (ii) above. In any Affiliate Transaction (or any series of
related Affiliate Transactions which are similar or part of a common plan)
involving an amount or having a fair market value in excess of $5.0 million
which is not permitted under clause (i) above, the Issuers must obtain a
favorable written opinion as to the fairness, from a financial point of view, of
such transaction or transactions, as the case may be, from an Independent
Financial Advisor.
The foregoing provisions will not apply to (i) any Restricted Payment that is
not prohibited by the provisions described under Section 4.09 hereof, (ii)
reasonable fees and
-56-
compensation paid to and indemnity provided on behalf of, officers, directors or
employees of the Issuers or any Restricted Subsidiary of an Issuer as determined
in good faith by such Issuer's Board of Directors or senior management, (iii)
arrangements now or hereafter in effect between Insight and third parties which
arrangements can be used for the benefit of a Restricted Subsidiary and (iv) any
forgiveness or distribution by Phoenix of the Excluded Assets.
Notwithstanding anything contained herein to the contrary, the terms of the
Operating Agreement and the indemnification provisions of the Close Corporation
Agreement and the performance by any party thereto of its obligations thereunder
shall not be considered an Affiliate Transaction.
Section 4.12. Limitations on Liens.
--------------------
The Issuers will not, and will not permit any of their Restricted Subsidiaries
to, create, incur or otherwise cause or suffer to exist or become effective any
Liens of any kind (other than Permitted Liens) upon any property or asset of an
Issuer or any of their Restricted Subsidiaries or any shares of Capital Stock or
Indebtedness of any Restricted Subsidiary of an Issuer which owns property or
assets, now owned or hereafter acquired, unless (i) if such Lien secures
Indebtedness which is pari passu with the Notes (without giving effect to the
---- -----
principles of structural subordination), then the Notes are secured on an equal
and ratable basis with the obligations so secured until such time as such
obligation is no longer secured by a Lien or (ii) if such Lien secures
Indebtedness which is subordinated to any debt of a Restricted Subsidiary, any
such Lien shall be subordinated to the Lien granted to the holders of the Notes
to the same extent as such Indebtedness is subordinated to the Notes.
Section 4.13. [Intentionally Omitted]
Section 4.14. Limitation on Creation of Subsidiaries.
--------------------------------------
The Issuers will not create or acquire, and will not permit any of their
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the Issue Date, or (ii) a Restricted
Subsidiary that is acquired or created in connection with the acquisition by an
Issuer of a related business or asset, or (iii) an Unrestricted Subsidiary;
provided, however, that each Restricted Subsidiary acquired or created pursuant
- -------- -------
to clause (ii) shall have executed a guarantee, satisfactory in form and
substance to the Trustee (and
-57-
with such documentation relating thereto as the Trustee shall require,
including, without limitation a supplement or amendment to this Indenture and
opinions of counsel as to the enforceability of such guarantee), pursuant to
which such Restricted Subsidiary will become a Guarantor. As of the Issue Date,
the Issuers will have no Restricted Subsidiaries, other than Coaxial, Phoenix
and the Guarantors.
Section 4.15. [Intentionally Omitted]
Section 4.16. Limitation on Sale and Lease-Back
Transactions.
-------------
The Issuers will not, and will not permit any of their Restricted Subsidiaries
to, enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold, as determined in good faith by the Board of
Directors of an Issuer and evidenced by a board resolution and (ii) the Issuers
could incur the Attributable Indebtedness in respect of such Sale and Lease-Back
Transaction in compliance with Section 4.06 hereof.
Section 4.17. Payments for Consent.
--------------------
The Issuers will not, and will not permit any of their Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
Section 4.18. Legal Existence.
---------------
Subject to Article 5 hereof, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) their legal
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Restricted Subsidiary and the
rights (charter and statutory), licenses and franchises of the Issuers and their
Restricted Subsidiaries; provided, however, that the Issuers shall not be
-------- -------
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required to preserve any such right, license or franchise, or the corporate,
partnership, limited liability company or other existence of any of their
Restricted Subsidiaries if the Board of Directors of the Issuers shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Issuers and their Restricted Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders.
Section 4.19. Change of Control.
-----------------
Upon the occurrence of a Change of Control, the Issuers shall be obligated to
make an offer to purchase (the "Change of Control Offer") each holder's
outstanding Notes at a purchase price (the "Change of Control Purchase Price")
equal to (x) 101% of the Accreted Value thereof, if the Change of Control
Payment Date is on or prior to August 15, 2003, or (y) 101% of the principal
amount at maturity thereof together with accrued and unpaid interest, if any,
thereon to the Change of Control Payment Date (as defined below), if the Change
of Control Payment Date is after August 15, 2003 (such applicable purchase price
being hereinafter referred to as the "Change of Control Purchase Price"), in
accordance with the procedures set forth below.
Within 20 days of the occurrence of a Change of Control, the Issuers 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, postage prepaid, to the Trustee and to each
holder of the Notes, at the address appearing in the register maintained by the
Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this covenant
and that all Notes tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase date (which shall be
a Business Day no earlier than 30 days nor later than 45 days from the date such
notice is mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to accrete in value or accrue
interest;
(4) that, unless the Issuers default in the payment of the Change of Control
Purchase Price, any Notes accepted
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for payment pursuant to the Change of Control Offer shall cease to accrete in
value or accrue interest after the Change of Control Payment Date;
(5) that holders accepting the offer to have their Notes purchased pursuant to
a Change of Control Offer will be required to surrender the Notes to the Paying
Agent at the address specified in the notice prior to the close of business on
the Business Day preceding the Change of Control Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the Paying
Agent receives, not later than the close of business on the third Business Day
preceding 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 Notes delivered for purchase, and a statement that such holder is
withdrawing his election to have such Notes purchased;
(7) that holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered;
(8) any other procedures that a holder must follow to accept a Change of
Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful, (i) accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Notes or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee Notes so accepted together with
an Officers' Certificate stating the Notes or portions thereof tendered to the
Issuers. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Issuers shall execute and issue, and the Trustee shall promptly authenticate
and mail to such holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
--------
issued in denominations of $1,000 principal amount at maturity and integral
multiples thereof.
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If the Senior Credit Facility is in effect or the Senior Notes are
outstanding, or any amounts are owing thereunder or in respect thereof, at the
time of the occurrence of a Change of Control, prior to the mailing of the
notice to holders described in the second preceding paragraph, but in any event
within 20 days following any Change of Control, the Issuers covenant to (i)
cause the borrowers thereunder to repay in full all obligations and terminate
all commitments under or in respect of the Senior Credit Facility or offer to
repay in full all obligations and terminate all commitments under or in respect
of the Senior Credit Facility and repay the Indebtedness owed to each such
lender who has accepted such offer and cause the issuers thereof to repay in
full all obligations in respect of the Senior Notes or offer to repay in full
all obligations in respect of the Senior Notes and repay the obligations in
respect of the Senior Notes of each holder who has accepted such offer or (ii)
cause such borrowers and issuers to obtain the requisite consents under the
Senior Credit Facility and from the holders of Senior Notes, respectively, to
permit the repurchase of the Notes as described above. The Issuers must first
comply with the covenant described in the preceding sentence before it shall be
required to purchase Notes in the event of a Change of Control; provided that
--------
the Issuers' failure to comply with the covenant described in the preceding
sentence constitutes an Event of Default described in clause (3) under Section
6.01 hereof if not cured within 30 days after the notice required by such
clause. As a result of the foregoing, a holder of the Notes may not be able to
compel the Issuers to purchase the Notes unless the Issuers are able at the time
to refinance all of the obligations under or in respect of the Senior Credit
Facility or obtain requisite consents under the Senior Credit Facility and
refinance all of the obligations in respect of the Senior Notes or obtain
requisite consents from the holders of the Senior Notes.
If an Issuer or any Restricted Subsidiary thereof has issued any outstanding
(i) indebtedness that is subordinated in right of payment to the Notes or senior
in right of payment with respect to Indebtedness of Restricted Subsidiaries
(other than under the Senior Credit Facility) or (ii) Preferred Stock, and an
Issuer or such Restricted Subsidiary is required to make a Change of Control
Offer or to make a distribution with respect to such indebtedness or Preferred
Stock in the event of a change of control, the Issuers shall not consummate any
such offer or distribution with respect to such indebtedness or Preferred Stock
until such time as the Issuers shall have paid the Change of Control Purchase
Price in full to the holders of Notes that have accepted the Issuers' Change of
Control Offer and shall otherwise
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have consummated the change of control offer made to holders of the Notes; and
the Issuers will not issue Indebtedness that is subordinated in right of payment
to the Notes or Preferred Stock with change of control provisions requiring the
payment of such Indebtedness or Preferred Stock prior to the payment of the
Notes in the event of a Change in Control under this Indenture.
The Issuers will not be required to make a Change of Control Offer if a third
party makes the Change of Control Offer in the manner, at the time and otherwise
in compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Issuers and purchases all Notes or portions
thereof validly tendered and not withdrawn under such Change of Control Offer.
The Issuers will comply 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 repurchase of Notes
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the "Change of Control" provisions
of this Indenture, the Issuers shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached their obligations under
the "Change of Control" provisions of this Indenture by virtue thereof.
Section 4.20. Maintenance of Office or Agency.
-------------------------------
The Issuers shall maintain an office or agency where Notes may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Issuers in respect of the Notes and
this Indenture may be served. The Issuers shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 12.02.
The Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Issuers shall
give prompt written notice to the Trustee of such designation or
-62-
rescission and of any change in the location of any such other office or agency.
The Issuers hereby initially designate the Corporate Trust Office of the
Trustee set forth in Section 12.02 as such office of the Issuers.
Section 4.21. Maintenance of Properties; Insurance; Books
and Records; Compliance with Law.
---------------------------------
(a) The Issuers shall, and shall cause each of their Restricted Subsidiaries
to, at all times cause all properties used or useful in the conduct of their
business to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto.
(b) The Issuers shall, and shall cause each of their Restricted Subsidiaries
to, maintain insurance (which may include self-insurance) in such amounts and
covering such risks as are usually and customarily carried with respect to
similar facilities according to their respective locations.
(c) The Issuers shall, and shall cause each of their Subsidiaries to, keep
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Issuers
and each Subsidiary of the Issuers, in accordance with GAAP consistently applied
to the Issuers and their Subsidiaries taken as a whole.
(d) The Issuers shall and shall cause each of their Subsidiaries to comply
with all statutes, laws, ordinances or government rules and regulations to which
they are subject, non-compliance with which would materially adversely affect
the business, earnings, assets or financial condition of the Issuers and their
Subsidiaries taken as a whole.
Section 4.22. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries.
-------------
The Issuers will not, and will not permit any of their Restricted Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary of an Issuer to (a)(i) pay dividends or
-63-
make any other distributions to an Issuer or any Restricted Subsidiary of an
Issuer (A) on its Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits or (ii) repay any Indebtedness or
any other obligation owed to an Issuer or any Restricted Subsidiary of an
Issuer, (b) make loans or advances or capital contributions to an Issuer or any
of its Restricted Subsidiaries or (c) transfer any of its properties or assets
to an Issuer or any of their Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) encumbrances or
restrictions existing on the Issue Date to the extent and in the manner such
encumbrances and restrictions are in effect on the Issue Date, (ii)(x) this
Indenture, the Notes and the Guarantees and (y) the Senior Notes Indenture, the
Senior Notes and the Senior Guarantees, (iii) applicable law, (iv) the Senior
Credit Facility, (v) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person (including any Subsidiary of the Person), so acquired, (vi) customary
non-assignment provisions in leases or other agreements entered in the ordinary
course of business and consistent with past practices, (vii) Refinancing
Indebtedness; provided that such restrictions are no more restrictive than those
--------
contained in the agreements governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, (viii) customary
restrictions in security agreements or mortgages securing Indebtedness of an
Issuer or a Restricted Subsidiary to the extent such restrictions restrict the
transfer of the property subject to such security agreements and mortgages or
(ix) customary restrictions with respect to a Restricted Subsidiary of an Issuer
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary.
Section 4.23. Limitation on Disqualified Capital Stock of
Restricted Subsidiaries.
------------------------
The Issuers will not permit any of their Restricted Subsidiaries to issue any
Disqualified Capital Stock (except Disqualified Capital Stock issued to an
Issuer or a Wholly Owned Subsidiary of an Issuer) or permit any Person (other
than an Issuer or a Wholly Owned Subsidiary of an Issuer) to hold any such
Disqualified Capital Stock unless an Issuer or such Restricted Subsidiary would
be entitled to incur or assume Indebtedness under Section 4.06 hereof (other
than Permitted Indebtedness) in the aggregate principal amount equal to the
-64-
aggregate liquidation value of the Disqualified Capital Stock to be issued.
Section 4.24. Limitation on Asset Swaps.
-------------------------
The Issuers will not, and will not permit any Restricted Subsidiary to, engage
in any Asset Swaps which constitute substantially all the assets of the Issuers,
unless: (i) at the time of entering into the agreement to swap assets and
immediately after giving effect to the proposed Asset Swap, no Default or Event
of Default shall have occurred and be continuing or would occur as a consequence
thereof; and (ii) the Issuers have been informed in writing by either S&P or
Moody's that any Indebtedness of the Issuers (including the Notes) will not be
downgraded as a result of such Asset Swap. Notwithstanding clause (ii) of the
immediately preceding sentence, the Issuers will be allowed to consummate an
Asset Swap even if such Asset Swap will result in such a downgrade, if within
five days of the occurrence of such Asset Swap, the Issuers make an offer to
purchase Notes in accordance with the procedures described in Section 4.19
hereof (the "Asset Swap Offer") at the following redemption prices (expressed,
in the case of periods prior to August 15, 2003, as a percentage of the Accreted
Value and, in the case of periods on or after August 15, 2003, as a percentage
of the principal amount at maturity) together, if after August 15, 2003, with
accrued and unpaid interest, if any, to the redemption date, if redeemed during
the twelve-month period beginning on each year listed below:
Year Percentage
- ---- ----------
1998 112.8750%
1999 111.5875%
2000 110.3000%
2001 109.0125%
2002 107.7250%
2003 106.4375%
2004 105.1500%
2005 103.8625%
2006 and thereafter 103.0000%
Section 4.25. Payment of Pass Through Dividends.
----------------------------------
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The Issuers will cause Coaxial to immediately use all proceeds received from
Insight Ohio as Preferred Payments in respect of the Series B Preferred
Interests to pay a dividend in like amount to Coaxial LLC, Coaxial DJM LLC and
Coaxial DSM LLC.
Section 4.26. Limitation on Conduct of Business.
---------------------------------
The Issuers will not engage in any business other than holding the Common
Stock of Coaxial and the LLC Mirror Notes, serving as a secured holder of the
remaining Common Stock of Coaxial and issuing the Notes. The Issuers will not
permit Coaxial to engage in any business other than holding common membership
interests and the Preferred Interests of Insight Ohio and issuing the Senior
Notes. The Issuers will not permit their Restricted Subsidiaries (other than
Coaxial) to engage in any businesses which are not the same, similar, related,
ancillary or complementary to the businesses in which Insight Ohio and their
Restricted Subsidiaries are then engaged.
Section 4.27. Further Assurance to the Trustee.
--------------------------------
The Issuers shall, upon the reasonable request of the Trustee, execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the provisions of this
Indenture.
Section 4.28. No Recourse Against the Issuers.
-------------------------------
The Notes will be non-recourse obligations of the Issuers and the only
recourse a holder of the Notes will have with respect to the payment of
principal or interest on the Notes will be enforcement of the rights granted
pursuant to the Pledge Agreement with respect to the Discount Notes Collateral
and the mandatory redemption provisions of the Series B Preferred Interests and,
failing that, enforcement of the Guarantee.
ARTICLE 5SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets.
---------------
The Issuers will not and will not permit any of their Restricted Subsidiaries
to consolidate with, merge with or into,
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or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the assets of the Issuers (as an entirety or substantially
as an entirety in one transaction or a series of related transactions), to any
Person unless: (i) an Issuer or such Restricted Subsidiary, as the case may be,
shall be the continuing Person, or the Person (if other than an Issuer or such
Restricted Subsidiary) formed by such consolidation or into which an Issuer or
such Restricted Subsidiary, as the case may be, is merged or to which the
properties and assets of an Issuer or such Restricted Subsidiary, as the case
may be, are sold, assigned, transferred, leased, conveyed or otherwise disposed
of shall be a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of an Issuer or such
Restricted Subsidiary, as the case may be, under this Indenture, the Notes and
the Guarantees, and the obligations thereunder shall remain in full force and
effect; (ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and (iii) immediately after giving effect to such transaction on a
pro forma basis the Issuers or such Person could incur at least $1.00 of
- --- -----
additional Indebtedness (other than Permitted Indebtedness) under Section 4.06
hereof; provided that Insight Ohio may merge with Coaxial without complying with
--------
this clause (iii).
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Issuers shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of an Issuer the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Issuers, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Issuers.
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Section 5.02. Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any transfer of all or substantially all
of the assets of any Issuer or any Guarantor in accordance with Section 5.01
above, the successor corporation formed by such consolidation or into which such
Issuer is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, such Issuer or such
Guarantor under this Indenture with the same effect as if such successor
corporation had been named as such Issuer or such Guarantor herein, and
thereafter the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Notes.
ARTICLE 6DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" occurs if
(1) default in payment of any Accreted Value of, or principal of, or
premium, if any, on the Notes whether at maturity, upon redemption or
otherwise;
(2) default for 30 days in payment of any interest on the Notes;
(3) default by an Issuer or any Restricted Subsidiary in the observance
or performance of any other covenant in the Notes, this Indenture or the
Pledge Agreement for 30 days after written notice from the Trustee as
directed by the holders of not less than 25% in aggregate principal amount
at maturity of the Notes then outstanding (except in the case of a default
with respect to Section 4.19 or 5.01 hereof which shall constitute an Event
of Default with such notice requirement but without such passage of time
requirement);
(4) failure to pay when due principal, interest or premium in an
aggregate amount of $7.5 million or more with respect to any Indebtedness
of an Issuer or any Restricted Subsidiary thereof, or the acceleration of
any such Indebtedness aggregating $7.5 million or more which
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default shall not be cured, waived or postponed pursuant to an agreement
with the holders of such Indebtedness within 60 days after written notice
as provided in this Indenture, or such acceleration shall not be rescinded
or annulled within 20 days after written notice as provided in this
Indenture;
(5) any final judgment or judgments which can no longer be appealed for
the payment of money in excess of $7.5 million, net of any amounts covered
by insurance, shall be rendered against an Issuer or any Restricted
Subsidiary thereof, and shall not be discharged for any period of 60
consecutive days during which a stay of enforcement shall not be in effect;
(6) either of the Issuers or any Restricted Subsidiary 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 all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due;
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against either of the Issuers or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of either of the Issuers or any Restricted
Subsidiary or for all or substantially all of the property of any of
the Issuers or any Restricted Subsidiary, or
(C) orders the liquidation of either of the Issuers or any
Restricted Subsidiary,
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and the order or decree remains unstayed and in effect for 60 days;
(8) any modification of the mandatory redemption provisions relating to
the Preferred Interests contained in the Operating Agreement;
(9) any of the Guarantees ceases to be in full force and effect or any of
the Guarantees is declared to be null and void and unenforceable or any of
the Guarantees is found to be invalid or any of the Guarantors denies its
liability under its Guarantee (other than by reason of release of a
Guarantor in accordance with the terms of this Indenture); and
(10) failure to have a first priority perfected security interest with
respect to the Discount Notes Collateral.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
The Trustee may withhold notice to the holders of the Notes of any
default (except in payment of principal or premium, if any, or interest on the
Notes) if the Trustee considers it to be in the best interest of the holders of
the Notes to do so.
Section 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default resulting from certain
events of bankruptcy, insolvency or reorganization) shall have occurred and be
continuing, then the Trustee or the holders as directed by not less than 25% in
aggregate principal amount at maturity of the Notes then outstanding may declare
the Notes to be immediately due and payable in an amount equal to (x) the
Accreted Value of the Discount Notes outstanding on the date of acceleration, if
such declaration is made prior to August 15, 2003 or (y) the entire principal
amount at maturity of the Discount Notes outstanding on the date of acceleration
plus accrued interest, if any, to the date of acceleration if such declaration
is made after August 15, 2003 (i) and the same shall become immediately due and
payable or (ii) if there are any amounts outstanding under the Senior Credit
Facility or Senior Notes, shall become immediately due and payable upon the
first to occur of an acceleration under the
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Senior Credit Facility or Senior Notes or 5 business days after receipt by an
Issuer, the representative under the Senior Credit Facility and the trustee
under the Senior Notes Indenture of a notice of acceleration; provided, however,
-------- -------
that after such acceleration but before a judgment or decree based on
acceleration is obtained by the Trustee, the holders of a majority in aggregate
principal amount at maturity of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if (i) all Events of Default,
other than nonpayment of Accreted Value, principal, premium, if any, or interest
that has become due solely because of the acceleration, have been cured or
waived as provided in this Indenture, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest on overdue
Accreted Value, overdue interest and overdue principal which has become due
otherwise than by such declaration of acceleration, has been paid, (iii) if the
Issuers have paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (iv) in the event of
the cure or waiver of an Event of Default of the type described in clauses (6)
or (7) of Section 6.01, the Trustee shall have received an Officers' Certificate
and an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereto. In case an Event of Default resulting from certain events
of bankruptcy, insolvency or reorganization shall occur, the Accreted Value,
principal, premium and interest amount with respect to all of the Notes shall be
due and payable immediately without any declaration or other act on the part of
the Trustee or the holders of the Notes.
The holders of a majority in principal amount at maturity of the Notes then
outstanding shall have the right to waive any existing default or compliance
with any provision of this Indenture or the Notes and to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
subject to certain limitations provided for in this Indenture and under the TIA.
No holder of any Note will have any right to institute any proceeding with
respect to this Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless the holders of at least 25% in aggregate principal amount at
maturity of the outstanding Notes shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as Trustee, and
unless the Trustee
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shall not have received from the holders of a majority in aggregate principal
amount at maturity of the outstanding Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
Notwithstanding the foregoing, such limitations do not apply to a suit
instituted on such Note on or after the respective due dates expressed in such
Note.
Upon the occurrence and during the continuance of an Event of Default, the
Trustee shall enforce its remedies with respect to the Discount Notes Collateral
in accordance with instructions received from holders of a majority of the
aggregate principal amount at maturity of outstanding Notes, or in the absence
of such instructions, in such manner as the Trustee deems appropriate, in each
case as provided herein. All funds received by the Trustee upon any such
enforcement shall be distributed by the Trustee in accordance with the
provisions hereof. Upon the full and final payment and performance of all
obligations of the Issuers under this Indenture and the Notes, the Discount
Notes Collateral shall be released.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
Accreted Value of, or principal of, or premium, if any, and interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture and may take any necessary action requested of it as Trustee to
settle, compromise, adjust or otherwise conclude any proceedings to which it is
a party.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by
the Trustee or any noteholder 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 and Events of
Default.
--------
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding have the
right to waive any
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existing Default or Event of Default or compliance with any provision of this
Indenture or the Notes. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
-------------------
The Holders of a majority in aggregate principal amount at maturity of the
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
--------
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
-------------------
Subject to Section 6.07 below, a noteholder may not institute any proceeding
or pursue any remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount at maturity
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and if requested provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
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(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer, and, if requested provision, of
indemnity; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding.
A noteholder may not use this Indenture to prejudice the rights of
another noteholder or to obtain a preference or priority over another
noteholder.
Section 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal of, or premium, if any, and interest
of the Note (including Additional Interest) on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, is absolute and unconditional and shall not
be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of Accreted Value or principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Issuers or the Guarantors (pursuant to the terms of Section
10) (or any other obligor on the Notes) for the whole amount of unpaid Accreted
Value or unpaid principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate set forth in the Notes, and such further amounts as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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 (including
any claim for the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the noteholders allowed in any judicial proceedings
relative to the Issuers or the Guarantors (or any other obligor upon the Notes),
its creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same after deduction of its charges and expenses to the
extent that any such charges and expenses are not paid out of the estate in any
such proceedings and any custodian in any such judicial proceeding is hereby
authorized by each noteholder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any noteholder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any noteholder in any such proceedings.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article 6, it shall pay out
the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional Interest, if
any) as to each, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes; and
THIRD: to the Issuers or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
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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 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 hereof or a suit by Holders of more than 10% in principal amount of the
Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Issuers, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE 7TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default actually known to a Responsible Officer of the
Trustee has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent man would exercise or use under the
same circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others.
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(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 but, in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(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 Sections 6.02, 6.05 or 6.06 hereof.
(4) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its rights, powers or duties if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a), (b),
(c) and (e) of this Section 7.01 shall govern every provision of this Indenture
that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it in its sole discretion
against any loss, liability, expense or fee.
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(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
Section 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed by it
with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the advice
or opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the either of the Issuers or any Guarantor,
or any Affiliates thereof, with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. The
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Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes or any Guarantee or as to
the value of, or perfection or priority of any security interest in, any
collateral pledged to the Trustee, it shall not be accountable for the Issuers'
or any Guarantor's use of the proceeds from the sale of Notes or any money paid
to the Issuers or any Guaranty pursuant to the terms of this Indenture and it
shall not be responsible for any statement in the Notes, Guarantee or this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each noteholder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of the principal of, or
premium, if any, or interest on any Note the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith
determine(s) that withholding the notice is in the interests of the noteholders.
Section 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after May 15 of any year,
commencing May 15, 1999, the Trustee shall mail to each noteholder a brief
report dated as of such May 15 that complies with TIA (S) 313(a). The Trustee
also shall comply with TIA (S) 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA (S) 313(c) and TIA (S) 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders of Notes, as the names and addresses of
such Holders appear on the Registrar's books; and
(2) to such Holder of Notes as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose.
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A copy of each report at the time of its mailing to noteholders shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Issuers shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
The Issuers and the Guarantors shall pay to the Trustee and Agents from time
to time such compensation as shall be agreed in writing between the Issuers and
the Trustee for its services hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust). The Issuers and the Guarantors shall reimburse the Trustee and Agents
upon request for all reasonable disbursements, expenses and advances incurred or
made by it in connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuers and the Guarantors shall indemnify each of the Trustee and any
predecessor Trustee for, and hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including without limitation taxes
(other than taxes based on the income of the Trustee or such Agent) and
reasonable attorneys' fees and expenses incurred by each of them in connection
with the acceptance or performance of its duties under this Indenture including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder (including, without limitation, settlement costs). The Trustee
or Agent shall notify the Issuers and the Guarantors in writing promptly of any
claim asserted against the Trustee or Agent for which it may seek indemnity.
However, the failure by the Trustee or Agent to so notify the Issuers and the
Guarantors shall not relieve the Issuers and Guarantors of their obligations
hereunder except to the extent the Issuers and the Guarantors are prejudiced
thereby.
Notwithstanding the foregoing, the Issuers and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Issuers and the Guarantors in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes. The obligations of the
Issuers and
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the Guarantors under this Section 7.07 to compensate and indemnify the Trustee,
Agents and each predecessor Trustee and to pay or reimburse the Trustee, Agents
and each predecessor Trustee for expenses, disbursements and advances shall be
joint and several liabilities of the Issuers and each of the Guarantors and
shall survive the satisfaction, discharge and termination of this Indenture,
including any termination or rejection hereof under any bankruptcy law.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(6), (7) or (8) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
For purposes of this Section 7.07, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Issuers and the Guarantors in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by notifying the removed Trustee in writing and may
appoint a successor Trustee with the Issuers' written consent which consent
shall not be unreasonably withheld. The Issuers may remove the Trustee at their
election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) a successor corporation becomes successor Trustee pursuant to Section
7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of a majority in principal amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. Immediately following such delivery,
the retiring Trustee shall, subject to its rights under Section 7.07 hereof,
transfer all property held by it as Trustee to the successor Trustee, 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. A successor Trustee shall mail notice of its succession
to each noteholder. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Issuers obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger,
Etc.
----
If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation, subject
to Section 7.10 hereof, the successor corporation without any further act shall
be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements of
TIA (S) 310(a)(1) and (2) in every respect. The Trustee, or the bank holding
company of which the Trustee is a wholly-owned Subsidiary, shall have a combined
capital and surplus of at least $140,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA (S)
310(b), including the provision in (S) 310(b)(1).
Section 7.11. Preferential Collection of Claims Against
the Issuers.
------------
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The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
Section 7.12. Paying Agents.
-------------
The Issuers shall cause each Paying Agent other than the Trustee to execute
and deliver to it and the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Notes (whether such
sums have been paid to it by the Issuers or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuers (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
--------------------------
The Issuers and the Guarantors, when authorized by a Board Resolution of each
of them, and the Trustee may amend, waive or supplement this Indenture or the
Notes without notice to or consent of any noteholder:
(1) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
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(2) to comply with any requirements of the SEC under the TIA;
(3) to cure any ambiguity, defect or inconsistency, or to make any other
change that does not, in the opinion of the Trustee, materially and
adversely affect the rights of any noteholder; or
(4) to add a Guarantor.
The Trustee is hereby authorized to join with the Issuers and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
-----------------------
The Issuers (each when authorized by a Board Resolution), the Guarantors (each
when authorized by a Board Resolution) and the Trustee may modify or supplement
this Indenture, the Notes, the Pledge Agreement and the LLC Mirror Notes with
the written consent of the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes. The Holders of not less than a
majority in aggregate principal amount of the outstanding Notes may waive
compliance in a particular instance by the Issuers or Guarantors with any
provision of this Indenture or the Notes. Subject to Section 8.04, without the
consent of each noteholder affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Note;
(3) reduce the principal of or premium on or change the stated maturity
of any Note or change the date on which any Notes may be subject to
redemption or repurchase or reduce the redemption or repurchase price
thereof;
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(4) make any Note payable in money other than that stated in the Note or
change the place of payment from New York, New York;
(5) waive a default on the payment of principal of, interest on, or
redemption payment with respect to any Note;
(6) make any change in the provisions of this Indenture protecting the
right of each holder of Notes to receive payment of principal of and
interest on such Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting holders of a majority in principal
amount of Notes to waive Defaults or Events of Default;
(7) amend, change or modify in any material respect the obligation of the
Issuers to make and consummate a Change of Control Offer in the event of a
Change of Control or make and consummate an Asset Sale Offer with respect
to any Asset Sale that has been consummated or modify any provisions or
definitions with respect thereto;
(8) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Guarantee in a manner
which adversely affects the holders of Notes;
(9) release any Guarantor from any of its obligations under its Guarantee
or this Indenture otherwise than in accordance with the terms of this
Indenture; or
(10) modify or waive a default with respect to Section 6.01(8).
After an amendment, supplement or waiver under this Section 8.02 or
Section 8.01 becomes effective, the Issuers shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver.
Upon the written request of the Issuers, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Issuers and the Guarantors in the execution of such
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supplemental indenture unless such supplemental indenture adversely affects the
Trustee's own rights, duties or immunities under this Indenture, in which case
the Trustee may, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Notes shall comply
with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement, waiver or other action becomes effective, a
consent to it by a Holder of a Note is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Note or portion
thereof, and of any Note issued upon the transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any
such Note. Any such Holder or subsequent Holder, however, may revoke the
consent as to his Note or portion of a Note, if the Trustee receives the written
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other action becomes effective, it
shall bind every noteholder, unless it makes a change described in any of
clauses (1) through (10) of Section 8.02 hereof. In that case the amendment,
supplement, waiver or other action shall bind each Holder of a Note who has
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consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee (in accordance with the specific written direction of the Issuers) shall
request the Holder of the Note (in accordance with the specific written
direction of the Issuers) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Issuers or the Trustee so
determines, the Issuers in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 8.06. Trustee to Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized pursuant
to this Article 8 if the amendment, supplement or waiver 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 or refusing to sign
such amendment, supplement or waiver the Trustee shall be entitled to receive
and, subject to Section 7.01 hereof, shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Issuers and Guarantors, enforceable
against the Issuers and Guarantors in accordance with its terms (subject to
customary exceptions).
ARTICLE 9DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
----------------------
The Issuers and the Guarantors may terminate their obligations under the
Notes, the Guarantees and this Indenture, except the obligations referred to in
the last paragraph of this
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Section 9.01, if there shall have been canceled by the Trustee or delivered to
the Trustee for cancellation all Notes theretofore authenticated and delivered
(other than any Notes that are asserted to have been destroyed, lost or stolen
and that shall have been replaced as provided in Section 2.07 hereof) and the
Issuers have paid all sums payable by them hereunder or deposited all required
sums with the Trustee.
After such delivery the Trustee upon Issuer request shall acknowledge in
writing the discharge of the Issuers' and the Guarantors' obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers in Sections 7.07, 9.05 and 9.06 hereof shall survive.
Section 9.02. Legal Defeasance.
----------------
The Issuers may at their option, by Board Resolution of the Board of Directors
of each of the Issuers, be discharged from their obligations with respect to the
Notes and the Guarantors discharged from their obligations under the Guarantees
on the date the conditions set forth in Section 9.04 below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Issuers shall be deemed to have paid and discharged the entire
indebtedness represented by the Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Issuers, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and Issuers acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely
from the trust funds described in Section 9.04 hereof and as more fully set
forth in such Section, payments in respect of the principal of, premium, if any,
and interest on such Notes when such payments are due, (B) the Issuers'
obligations with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09 and 4.20 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 9, the Issuers may exercise their option
under this Section 9.02 with
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respect to the Notes notwithstanding the prior exercise of its option under
Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
-------------------
At the option of the Issuers, pursuant to a Board Resolution of the Board of
Directors of each of the Issuers, the Issuers and the Guarantors shall be
released from their respective obligations under Sections 4.02 through 4.19 and
Section 4.21 through 4.28 hereof, inclusive, with respect to the outstanding
Notes on and after the date the conditions set forth in Section 9.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Issuers and the Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.04. Conditions to Legal Defeasance or Covenant
Defeasance.
-----------
The following shall be the conditions to application of Section 9.02 or
Section 9.03 hereof to the outstanding Notes:
(1) the Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and
accrued interest on
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the outstanding Notes at the maturity date of such principal, premium, if
any, or interest, or on dates for payment and redemption of such principal,
premium, if any, and interest selected in accordance with the terms of this
Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or, insofar as
Events of Default from bankruptcy, insolvency or reorganization events are
concerned, at any time during the period ending on the 91st day after the
date of such deposit;
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Issuers;
(4) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under this Indenture or any
other material agreement or instrument to which the Issuers or any of their
Subsidiaries are a party or by which an Issuer or any of their Subsidiaries
are bound;
(5) the Issuers shall have delivered to the Trustee an Opinion of Counsel
stating that, as a result of such Legal Defeasance or Covenant Defeasance,
neither the trust nor the Trustee will be required to register as an
investment company under the Investment Company Act of 1940, as amended;
(6) in the case of an election under Section 9.02 above, the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes or persons in their positions
will not recognize income, gain or loss for Federal income tax purposes
solely as a result of such Legal Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner, including as a result
of prepayment, and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain
or
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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;
(8) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as
the case may be) have been complied with;
(9) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Issuers with the intent of preferring the holders of the Notes over any
other creditors of the Issuers or with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuers or others; and
(10) the Issuers shall have paid or duly provided for payment under terms
mutually satisfactory to the Issuers and the Trustee all amounts then due
to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
-------------------------
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuers and the Guarantors shall (on a joint and several basis) pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge
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which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon an Issuer Request any
money or U.S. Government Obligations held by it as provided in Section 9.04
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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 Issuers' and each Guarantor's obligations under this Indenture,
the Notes and the Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 9 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided, however, that if
-------- -------
the Issuers or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuers or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture, all
moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Issuers, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Issuers upon an Issuer Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
----------------------
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Any moneys deposited with the Trustee or any Paying Agent or then held by the
Issuers or the Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Issuers (or, if
appropriate, the Guarantors) upon an Issuer Request, or if such moneys are then
held by the Issuers or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuers and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
--------
however, that the Trustee or any such Paying Agent, before being required to
- -------
make any such repayment, may, at the expense of the Issuers and the Guarantors,
either mail to each noteholder affected, at the address shown in the register of
the Notes maintained by the Registrar pursuant to Section 2.04 hereof, or cause
to be published once a week for two successive weeks, in a newspaper published
in the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Issuers. After payment to the
Issuers or the Guarantors or the release of any money held in trust by the
Issuers or any Guarantors, as the case may be, noteholders entitled to the money
must look only to the Issuers and the Guarantors for payment as general
creditors unless applicable abandoned property law designates another person.
ARTICLE 10GUARANTEE OF NOTES
Section 10.01. Guarantee.
---------
Subject to the provisions of this Article 10 each Guarantor hereby jointly and
severally conditionally guarantees, on a senior unsecured basis, to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors, irrespective of the validity and enforceability
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of this Indenture, the Notes or the obligations of the Issuers or any other
Guarantors to the Holders or the Trustee hereunder or thereunder, that the
principal of, interest and Additional Interest, if any, with respect to the
Notes will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest or Additional Interest, if any, with respect
to the Notes and all other obligations of the Issuers or the Guarantors to the
Holders or the Trustee hereunder or thereunder (including amounts due the
Trustee under Section 7.7 hereof). The conditional Guarantee will become
effective only upon satisfaction of each of the following conditions: (i)
enforcement by the Trustee of the rights granted pursuant to the Pledge
Agreement with respect to the Discount Notes Collateral, (ii) Insight Ohio's
failure to redeem the Series B Preferred Interests after ten days as provided in
the Operating Agreement and (iii) an adjudication (other than a default judgment
based upon a failure to prosecute or defend any claim) is obtained relating to
such failure. The Guarantee of any Guarantor will be subordinate to any secured
Indebtedness of such Guarantor to the extent of the assets securing such
Indebtedness and will be subordinate to the Senior Notes Guarantees, as
described in Section 10.07.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuers for liquidation
or reorganization, should the Issuers become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Issuer's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable preference," "fraudulent
transfer," "fraudulent conveyance" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
No stockholder, member, partner, agent, officer, director, employee or
incorporator, past, present or future, of any Guarantor, as such, shall have any
personal liability under this Guarantee by reason of his, her or its status as
such
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stockholder, member, partner, agent, officer, director, employee or
incorporator.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Guarantee.
Section 10.02. Execution and Delivery of Guarantees.
------------------------------------
To further evidence the Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form included in Exhibit G hereto, shall be endorsed on each Note authenticated
---------
and delivered by the Trustee and such Guarantee shall be executed by either
manual or facsimile signature of an Officer or an Officer of a general partner,
as the case may be, of each Guarantor. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in Section
10.01 hereof shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an officer of a Guarantor whose signature is on this Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of any Guarantee set forth in this
Indenture on behalf of the Guarantor.
Section 10.03. Limitation of Guarantee.
-----------------------
The obligations of each Guarantor are limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not
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constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
---
rata amount based on the Adjusted Net Assets of each Guarantor.
- ----
Section 10.04. Additional Guarantors.
---------------------
The Issuers covenant and agree that they shall cause any Person which becomes
a Restricted Subsidiary to execute a supplemental indenture and any other
documentation requested by the Trustee satisfactory in form and substance to the
Trustee pursuant to which such Restricted Subsidiary shall guarantee the
obligations of the Issuers under the Notes and this Indenture in accordance with
this Article 10 with the same effect and to the same extent as if such Person
had been named herein as a Guarantor.
Section 10.05. Release of Guarantor.
--------------------
A Guarantor shall be released from all of its obligations under its Guarantee
if:
(i) the Guarantor has sold all or substantially all of its assets or the
Issuers and their Restricted Subsidiaries have sold all of the Capital
Stock of the Guarantor owned by them, in each case in a transaction in
compliance with Sections 4.10 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with, or transfers
all or substantially all of its assets to, the Issuers or another Guarantor
in a transaction in compliance with Section 5.01 hereof;
and in each such case, such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.06. Waiver of Subrogation.
---------------------
Each Guarantor hereby irrevocably waives, until the prior payment in full of
all amounts outstanding hereunder and under the Notes, any claim or other rights
which it may now or hereafter acquire against any Issuer that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Guarantee and this Indenture,
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including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against any Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from any Issuer,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment on account of such claim or other rights. If any amount shall
be paid to any Guarantor in violation of the preceding sentence and the Notes
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee
for the benefit of such Holders to be credited and applied upon the Notes,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 10.06 is knowingly made in contemplation of
such benefits.
Section 10.07. Subordination of Guarantees.
---------------------------
Payments on the Guarantees by the Guarantors will be subordinated, as set
forth herein, in right of payment to the prior payment in full of all
obligations under the Senior Notes Guarantees.
Upon any distribution to holders of the Notes in a liquidation or dissolution
of the Issuers or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Issuers or their property, an assignment for
the benefit of creditors or any marshaling of the Issuers' assets and
liabilities, the holders of the Senior Notes will be entitled to receive payment
in full of all obligations guaranteed by Insight Ohio and any future guarantor
due in respect of the Senior Notes (including interest after the commencement of
any such proceeding at the rate specified in the Senior Notes Indenture)
pursuant to the Senior Notes Guarantees before the holders of Notes will be
entitled to receive any payment with respect to the Notes pursuant to the
Guarantees, and until all obligations guaranteed by Insight Ohio and any future
guarantor with respect to the Senior Notes Guarantees are paid in full, any
distribution by Insight Ohio and any future guarantor to which the holders of
Notes would be entitled pursuant to the Guarantees shall be made to the holders
of Senior Notes (except that holders of Notes may receive payments made from the
trust described in Section 9) if a
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default in the payment of the principal of or premium, if any, or interest on
the Senior Notes occurs and is continuing beyond any applicable period of grace.
ARTICLE 11SECURITY
Section 11.01. Pledge of Discount Notes Collateral.
-----------------------------------
(a) In order to secure the due and punctual payment of principal of and
interest on the Notes when and as the same shall be due and payable, whether on
an Interest Payment Date, at maturity, by acceleration, repurchase, redemption
or otherwise, and interest on the overdue principal of and interest (to the
extent permitted by law), if any, on the Notes and performance of all other
obligations of the Issuers to the Holders or the Trustee under this Indenture
and the Notes, Coaxial LLC and the Trustee have simultaneously with the
execution of this Indenture entered into the Pledge Agreement, pursuant to which
Coaxial LLC has granted to the Trustee for the benefit of the Trustee and the
Holders a first priority Lien on and security interest in the Discount Notes
Collateral.
(b) So long as no Event of Default shall have occurred and be continuing, and
subject to certain terms and conditions herein, Coaxial LLC will be entitled to
receive all cash distributions made upon or with respect to the Discount Notes
Collateral.
(c) Each Holder, by accepting a Note, consents and agrees to all of the terms
and provisions of the Pledge Agreement, as the same may be in effect from time
to time or may be amended from time to time in accordance with the provisions of
the Pledge Agreement and this Indenture, and authorizes and directs the Trustee
to act as secured party with respect thereto.
(d) As set forth in and governed by the Pledge Agreement, as among the
Holders of Notes, the Discount Notes Collateral as now or hereafter constituted
shall be held for the equal and ratable benefit of the Holders of the Notes
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for the
Notes.
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Section 11.02. Recording; Priority; Opinions, Etc.
----------------------------------
(a) Coaxial LLC shall at its sole cost and expense perform any
and all acts and execute any and all documents (including,
without limitation, the execution, amendment or supplementation
of any financing statement and continuation statement or other
statement) for filing under the provisions of the UCC and the
rules and regulations thereunder, or any other statute, rule or
regulation of any applicable federal, state or local
jurisdiction, which are necessary or advisable and shall do such
other acts and execute such other documents as may be required
under the Pledge Agreement, from time to time, in order to grant,
perfect and maintain in favor of the Trustee for the benefit of
the Trustee and the Holders a valid and perfected first priority
Lien on the Discount Notes Collateral and to fully preserve and
protect the rights of the Trustee and the Holders under this
Indenture.
Coaxial LLC shall from time to time promptly pay and satisfy
all financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture and the Pledge
Agreement, any amendments thereto and any other instruments of
further assurance. Without limiting the generality of the
foregoing covenant, in the event at any time the Trustee shall
determine that additional transfer or similar taxes are required
to be paid to perfect or continue any Lien on any Discount Notes
Collateral, Coaxial LLC shall pay such taxes promptly upon demand
by the Trustee.
(b) Coaxial LLC shall, promptly after the initial issuance of
the Notes, furnish to the Trustee an Opinion of Counsel relating
to the validity and perfection of the security interests granted
pursuant to the Pledge Agreement.
Section 11.03. Release of the Discount Notes Collateral.
----------------------------------------
The Trustee shall not release the Discount Notes Collateral from the Lien of
the Pledge Agreement unless such release is in accordance with the provisions of
this Section 11.03 and of the Pledge Agreement. To the extent applicable,
Coaxial LLC shall cause TIA (S) 314(d) relating to the release of property or
Liens to be complied with.
(a) Satisfaction and Discharge; Defeasance. Coaxial LLC shall be entitled to
--------------------------------------
obtain a full release of all of the Discount Notes Collateral from the Lien of
this Indenture and the Pledge Agreement upon compliance with all of the
conditions
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precedent for satisfaction and discharge of this Indenture set forth in Section
9.01 or for defeasance pursuant to Section 9.02. Upon delivery by Coaxial LLC to
the Trustee of an Officers' Certificate and an Opinion of Counsel, each to the
effect that all of the conditions precedent have been complied with (which may
be the same Officers' Certificate and Opinion of Counsel required by Article 9),
the Trustee shall take all necessary action, at the request and expense of the
Issuers, to release and reconvey to Coaxial LLC all of the Discount Notes
Collateral, and shall deliver such Collateral in its possession to Coaxial LLC,
including, without limitation, the execution and delivery of releases or waivers
whenever necessary.
Upon delivery by Coaxial LLC of such documents that the Trustee may reasonably
require, the Trustee shall execute, acknowledge (if applicable) and deliver to
Coaxial LLC such counterpart within 10 Business Days after receipt by the
Trustee of a Release Notice, as applicable, and the satisfaction of the
applicable requirements of this Section 11.03.
At any time when a Default or an Event of Default shall have occurred and be
continuing, no release of the Discount Notes Collateral pursuant to the
provisions of this Indenture or the Pledge Agreement shall be effective as
against the Holders of the Notes.
Section 11.04. Trust Indenture Act Requirements.
--------------------------------
The release of any Discount Notes Collateral from the Pledge Agreement or the
release of, in whole or in part, the Liens created by the Pledge Agreement, will
not be deemed to impair the Lien of the Pledge Agreement in contravention of the
provisions hereof if and to the extent the Discount Notes Collateral or Liens
are released pursuant to the Pledge Agreement and pursuant to the terms hereof.
Any certificate or opinion required by TIA (S) 314(d) may be made by an officer
of Coaxial LLC, except in cases which TIA (S) 314(d) requires that such
certificate or opinion be made by an independent person.
Section 11.05. Suits to Protect Discount Notes Collateral.
------------------------------------------
Subject to the provisions of the Pledge Agreement, the Trustee shall have
power to institute and to maintain such suits and proceedings as it may
reasonably deem expedient to prevent any impairment of the Discount Notes
Collateral by any acts which may be unlawful or in violation of any of the
Pledge Agreement or this Indenture, and such suits and proceedings as the
Trustee may
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reasonably deem expedient to preserve or protect its interests and the interests
of the Holders in the Discount Notes Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the Discount Notes Collateral or be
prejudicial to the interests of the Holders or the Trustee).
Section 11.06. Purchase Protected.
------------------
In no event shall any purchaser in good faith of any property purported to be
released hereunder be bound to ascertain the authority of the Trustee to execute
the release or to inquire as to the satisfaction of any conditions required by
the provisions hereof for the exercise of such authority or to see to the
application of any consideration given by such purchaser or other transferee;
nor shall any purchaser or other transferee of any property or rights permitted
by this Article 11 to be sold be under obligation to ascertain or inquire into
the authority of the Issuers to make any such sale or other transfer.
Section 11.07. Powers Exercisable by Receiver or Trustee.
-----------------------------------------
In case the Discount Notes Collateral shall be in the possession of a receiver
or trustee, lawfully appointed, the powers conferred in this Article 11 upon the
Issuers with respect to the release, sale or other disposition of such property
may be exercised by such receiver or trustee, and an instrument signed by such
receiver or trustee shall be deemed the equivalent of any similar instrument of
Coaxial LLC or of any officer or officers thereof required by the provisions of
this Article 11.
Section 11.08. Determinations Relating to Discount Notes
Collateral.
-----------
In the event (i) the Trustee shall receive any written request from the
Issuers under the Pledge Agreement for consent or approval with respect to any
matter or thing relating to any Discount Notes Collateral or Coaxial LLC's
obligations with respect thereto (including, without limitation, the
determination as to whether any portion of the Discount Notes Collateral
constitutes released Discount Notes Collateral) or (ii) there shall be due to or
from the Trustee under the provisions of the Pledge Agreement any performance or
the delivery of any instrument or (iii) the Trustee shall become aware of any
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nonperformance by Coaxial LLC of any covenant or any breach of any
representation or warranty of Coaxial LLC set forth in the Pledge Agreement,
then, in each such event, the Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the Trustee on the manner in which
the Trustee should respond to such request or render any requested performance
or response to such nonperformance or breach. The Trustee shall be fully
protected in the taking of any action recommended or approved by any such
expert, consultant, agent or attorney or agreed to by a majority of Holders
pursuant to Section 6.05.
Section 11.09. Release upon Termination of Coaxial's LLC
Obligations.
------------
In the event that Coaxial LLC delivers an Officers' Certificate certifying
that the provisions of Section 9.01 or 9.02 have been complied with, the Trustee
shall (i) execute and deliver such releases, termination statements and other
instruments as Coaxial LLC may reasonably request evidencing the termination of
the Liens created by the Pledge Agreement and (ii) not be deemed to hold the
Liens for the benefit of the Holders.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
Section 12.02. Notices.
-------
Except for notice or communications to Holders any notice or communication
shall be given in writing and delivered in person, sent by facsimile, delivered
by commercial courier service or mailed by first-class mail, postage prepaid,
addressed as follows:
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If to the Issuers or any Guarantor:
c/o Insight Communications Company, L.P.
126 E. 56th StreetNew York, New York 10022
Attention: Chief Financial Officer
Fax Number: (212) 371-1549
and
c/o Coaxial Communications, Inc.
5111 Ocean Boulevard
Suite C
Sarasota, Florida 34242
Attention: Dennis McGillicuddy
Fax Number: (941) 346-2788
Copies to:
Cooperman Levitt Winikoff Lester & Newman, P.C.
800 Third Avenue
New York, New York 10022
Attention: Robert L. Winikoff, Esq.
and
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.Suite 800
Washington, D.C. 20036-6802
Attention: Timothy J. Kelley
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If to the Trustee:
Bank of Montreal Trust Company
88 Pine Street
New York, New York 10005
Attention: Amy Roberts
Fax Number: (212) 701-7698
Such notices or communications shall be effective when received and shall be
sufficiently given if so given within the time prescribed in this Indenture.
The Issuers, the Guarantors or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a noteholder shall be mailed to him by
first-class mail, postage prepaid, at his address shown on the register kept by
the Registrar.
Failure to mail a notice or communication to a noteholder or any defect in it
shall not affect its sufficiency with respect to other noteholders. If a notice
or communication to a noteholder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason of
any other cause, it shall be impossible to mail any notice as required by this
Indenture, then such method of notification as shall be made with the approval
of the Trustee shall constitute a sufficient mailing of such notice.
Section 12.03. Communications by Holders with Other
Holders.
--------
noteholders may communicate pursuant to TIA (S) 312(b) with other noteholders
with respect to their rights under this Indenture or the Notes. The Issuers,
the Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA (S) 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
----------
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Upon any request or application by the Issuers or any Guarantor to the Trustee
to take any action under this Indenture, the Issuers or such Guarantor shall
furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) 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 (which shall include the statements set forth
in Section 12.05 below) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 12.05. Statements Required in Certificate and
Opinion.
--------
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person 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 Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such
covenant or condition has been complied with.
Section 12.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 12.07. Business Days; Legal Holidays.
-----------------------------
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A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is a
Saturday, a Sunday, a federally-recognized holiday or a day on which banking
institutions are not required to be open in the State of New York. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 12.08. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.09. No Adverse Interpretation of Other
Agreements.
-----------
This Indenture may not be used to interpret another indenture, loan, security
or debt agreement of the Issuers or any Subsidiary thereof. No such indenture,
loan, security or debt agreement may be used to interpret this Indenture.
Section 12.10. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or premium, if any, or
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Issuers or any Guarantor in this Indenture or in any
supplemental indenture, or in any of the Notes, or because of the creation of
any Indebtedness represented thereby, shall be had against any stockholder,
member, partner, agent, officer, director or employee, as such, past, present or
future, of the Issuers or of any successor entity or against the property or
assets of any such stockholder, member, partner, agent, officer, employee or
director, either directly or through the Issuers or any Guarantor, or any
successor entity thereof, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the Notes are solely
obligations of the Issuers and the Guarantors, and that no such personal
liability whatever shall attach to, or is or shall be
-106-
incurred by, any stockholder, member, partner, agent, officer, employee or
director of the Issuers or any Guarantor, or any successor entity thereof,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or the Notes or implied therefrom, and that any and all such personal liability
of, and any and all claims against every stockholder, member, partner, agent,
officer, employee and director, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Notes. It is understood that this limitation on recourse is
made expressly for the benefit of any such stockholder, member, partner, agent,
employee, officer or director and may be enforced by any of them.
Section 12.11. Successors.
----------
All agreements of the Issuers and the Guarantors in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 12.12. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent one
and the same agreement.
Section 12.13. Table of Contents, Headings, etc.
--------------------------------
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 to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 12.14. Separability.
------------
Each provision of this Indenture shall be considered separable and if for any
reason any provision which is not essential to the effectuation of the basic
purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
COAXIAL LLC
By: /s/
----------------------------
Name:
Title:
COAXIAL FINANCING CORP.
By: /s/
----------------------------
Name:
Title:
INSIGHT COMMUNICATIONS OF CENTRAL
OHIO, LLC
By: /s/
----------------------------
Name:
Title:
BANK OF MONTREAL TRUST COMPANY, as Trustee
By: /s/ Amy Roberts
----------------------------
Name: Amy Roberts
Title: Vice President
EXHIBIT A
---------
[FORM OF FACE OF NOTE]
----------------------
Number CUSIP
COAXIAL LLC
-----------
COAXIAL FINANCING CORP.12 7/8% SENIOR DISCOUNT NOTE DUE 2008
------------------------------------------------------------
Coaxial LLC, a Delaware limited liability company ("Coaxial LLC",
which term includes any successor corporation), and Coaxial Financing Corp., a
Delaware corporation (jointly and severally, together with Coaxial LLC, the
"Issuers"), for value received promise to pay to or registered
assigns the principal sum of Dollars ($ ), on August
15, 2008.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2004
Record Dates: February 1 and August 1
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication shall have been executed by the Trustee by its
manual signature.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized Officers.
COAXIAL LLC
By:
-------------------------------
Name: Kim D. Kelly
Title: Executive Vice President
By:
-------------------------------
Name: Daniel Mannino
Title: Vice President
COAXIAL FINANCING CORP.
By:
--------------------------------
Name: Kim D. Kelly
Title: Executive Vice President
By:
--------------------------------
Name: Daniel Mannino
Title: Vice President
Certificate of Authentication:
This is one of the 12 7/8% Senior
Discount Notes due 2008 referred
to in the within-mentioned Indenture
Dated:
BANK OF MONTREAL TRUST COMPANY,as Trustee
By: Authorized Signatory
(REVERSE SIDE)
COAXIAL LLC
-----------
COAXIAL FINANCING CORP.12 7/8% SENIOR DISCOUNT NOTE DUE 2008
------------------------------------------------------------
1. INTEREST.
Coaxial LLC, a Delaware limited liability company ("Coaxial LLC"), and Coaxial
Financing Corp., a Delaware corpora tion (together with Coaxial LLC, the
"Issuers"), jointly and severally promise to pay interest on the principal
amount of this Note semiannually on February 15 and August 15 of each year (each
an "Interest Payment Date"), commencing on February 15, 2004, at the rate of 12
7/8% per annum. The principal amount at maturity of this Note will not bear or
accrue interest until August 15, 2003. Interest will be computed on the basis
of a 360 day year of twelve 30-day months. Cash Interest on the Notes will
accrue from the most recent date to which interest has been paid, or if no
interest has been paid, from August 15, 2003.
The Issuers shall pay interest on overdue Accreted Value or principal, and on
overdue premium, if any, and overdue interest, to the extent lawful, at the rate
equal to 2% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Issuers will pay interest on this Note provided for in Paragraph 1 above
(except defaulted interest) to the person who is the registered Holder of this
Note at the close of business on the February 1 or August 1 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Issuers will pay Accreted Value or principal, premium, if any, and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts; provided, however, that the Issuers may pay
-------- -------
Accreted Value or principal, premium, if any, and interest by check payable in
such money. They may mail an interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Bank of Montreal Trust Company (the "Trustee") will act as Paying
Agent and Registrar. The Issuers may change any Paying Agent or Registrar
without notice to the Holders of the Notes. Neither the Issuers nor any of
their Subsidiaries or Affiliates may act as Paying Agent but may act as
Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Issuers issued this Note under an Indenture dated as of August 21, 1998
(the "Indenture") among the Issuers, the Guarantor and the Trustee. The terms
of this Note 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. Code (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture. This Note is subject
to all such terms, and the Holder of this Note is referred to the Indenture and
said Trust Indenture Act for a statement of them. All capitalized terms in this
Note, unless otherwise defined, have the meanings assigned to them by the
Indenture.
The Notes are nonrecourse secured obligations of the Issuers limited to
$55,869,000 aggregate principal amount at maturity. The Indenture imposes
certain restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of capital stock by Subsidiaries of the
Issuers, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Issuers and their Restricted Subsidiaries,
certain other restricted payments by the Issuers and their Restricted
Subsidiaries, certain transactions with, and investments in, their affiliates,
certain sale and lease-back transactions and a provision regarding change-of-
control transactions.
5. OPTIONAL REDEMPTION.
The Issuers, at their option, may redeem the Notes, in whole at any time or in
part from time to time on or after August 15, 2003 at the following redemption
prices (expressed as percentages of the principal amount at maturity thereof),
together, in each case, with accrued and unpaid interest, if any, to the
redemption date, if redeemed during the twelve-month period beginning on August
15 of each year listed below:
Year Redemption Price
---- ----------------
2003 106.4375%
2004 104.2917%
2005 102.1458%
2006 and thereafter 100.0000%
In the event of a redemption of fewer than all of the Notes, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which such Notes are listed,
or if such Notes are not then listed on a national securities exchange, on a pro
---
rata basis, by lot or in such other manner as the Trustee shall deem fair and
- ----
equitable. The Notes will be redeemable in whole or in part upon not less than
30 nor more than 60 days' prior written notice, mailed by first class mail to a
holder's last address as it shall appear on the register maintained by the
Registrar of the Notes. On and after any redemption date, Accreted Value will
cease to accrete and interest will cease to accrue, as the case may be, on the
Notes or portions thereof called for redemption as long as funds are deposited
with the Paying Agent.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30 days but
not more than 60 days prior to the redemption date to each Holder of Notes to be
redeemed at its registered address as it shall appear on the register of the
Notes maintained by the Registrar. On and after any Redemption Date, interest
will cease to accrue on the Notes or portions thereof called for redemption
unless the Issuers shall fail to redeem any such Note.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used, subject
to further limitations contained therein, to make an offer to purchase certain
amounts of Notes in accordance with the procedures set forth in the Indenture.
The Issuers are also required to make an offer to purchase Notes upon the
occurrence of a Change of Control or an Asset Swap in accordance with procedures
set forth in the Indenture.
8. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Issuers, the Guarantor
and CIBC Oppenheimer Corp., as initial purchaser of the Notes, the Issuers will
be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for Notes of a separate series issued under
the Indenture (or a trust indenture substantially identical to the Indenture in
accordance with the terms of the Registration Rights Agreement) which have been
registered under the Securities Act, in like principal amount and having
substantially identical terms as the Notes. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer is
not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of $1,000
and integral multiples thereof. A Holder may register the transfer or exchange
of Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Note selected
for redemption or register the transfer of or exchange any Note for a period of
15 days before the mailing of notice of redemption of Notes to be redeemed or
any Note after it is called for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it for all
purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
the Issuers at their written request. After that, Holders entitled to money
must look to the Issuers for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be modified,
amended or supplemented by the Issuers, the Guarantors and the Trustee with the
consent of the Holders of
at least a majority in principal amount of the Notes then outstanding and any
existing default or compliance with any provision may be waived in a particular
instance with the consent of the Holders of a majority in principal amount of
the Notes then outstanding. Without the consent of Holders, the Issuers, the
Guarantors and the Trustee may amend the Indenture or the Notes or supplement
the Indenture for certain specified purposes including providing for
uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not, in
the opinion of the Trustee, materially and adversely affect the rights of any
Holder.
13. SUCCESSOR ENTITY.
When a successor entity assumes all the obligations of its predecessor under
the Notes and the Indenture and immediately before and thereafter no Default
exists and certain other conditions are satisfied, the predecessor entity will
be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of Default
(other than an Event of Default pursuant to Sections 6.01(6) or (7) of the
Indenture with respect to either of the Issuers) occurs and is continuing, the
Trustee by notice to the Issuers, or the Holders of not less than 25% in
aggregate principal amount at maturity of the Notes then outstanding, may
declare to be immediately due and payable the entire principal amount of all the
Notes then outstanding plus accrued but unpaid interest to the date of
acceleration; provided, however, that after such acceleration but before
-------- -------
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes
may, under certain circumstances, rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium or interest that has become due solely because of the
acceleration, have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
Default or impair any right consequent thereto. In case an Event of Default
specified in Sections 6.01(6) or (7) of the Indenture with respect to either of
the Issuers occurs, such principal amount, together with premium, if any, and
interest with respect to all of the Notes,
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE ISSUERS
The Trustee under the Indenture, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Issuers, any
Guarantor or their Affiliates, and may otherwise deal with the Issuers any
Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer, employee,
stockholder, member, partner or agent, as such, of the Issuers or any Guarantor
shall not have any liability for any obligations of the Issuers or any Guarantor
under the Notes or the Indenture or for any claim based on, in respect or by
reason of, such obligations or their creation. The Holder of this Note by
accepting this Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Note.
17. NO RECOURSE AGAINST THE ISSUERS.
This Note will be a non-recourse obligation of the Issuers and the only
recourse a holder of this Note will have with respect to the payment of
principal or interest on this Note will be enforcement of the rights granted
pursuant to the Pledge Agreement with respect to the Discount Notes Collateral
and the mandatory redemption provisions of the Series B Preferred Interests and,
failing that, enforcement of the Guarantee.
18. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire indebtedness on
this Note and for defeasance of certain covenants in the Indenture upon
compliance by the Issuers with certain conditions set forth in the Indenture.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
20. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Issuers have caused CUSIP Numbers to be printed
on the Notes and have directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders of the Notes. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
21. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: Coaxial LLC
and Coaxial Financing Corp., c/o Insight Communications, 126 East 56th Street,
New York, New York 10022, Attention: Chief Financial Officer.
22. GUARANTEES.
The Notes will be entitled to the benefits of certain Guarantees by the
Guarantors made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuers pursuant to Section 4.10, Section 4.19 or Section 4.24 of the
Indenture, check the appropriate box:
[ ] Section 4.10
[ ] Section 4.19
[ ] Section 4.24
If you want to have only part of the Note purchased by the pursuant
to Section 4.10, Section 4.19 or Section 4.24 of the Indenture, state the amount
you elect to have purchased:
$
Date:
Your Signature:
-----------------------------------------------
(Sign exactly as your name appears on the face of this
Note)
Signature Guaranteed
--------------------
EXHIBIT B
---------
[FORM OF LEGEND FOR RULE 144A NOTE]
-----------------------------------
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
"OFFSHORE TRANSACTION" PURSUANT TO REGULATION S (WITHIN THE MEANING OF RULE
903(c)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES THAT IT WILL
NOT, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO
YEARS (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(k) (OR ANY
SUCCESSOR PROVISION THEREOF) UNDER THE SECURITIES ACT) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE
THEREOF WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUERS OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE AND THE ISSUERS A LETTER SIGNED BY SUCH INVESTOR CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED PRIOR TO THE RESALE REGISTRATION
TERMINATION DATE A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. PRIOR TO
ANY OFFER, SALE OR OTHER TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE PURSUANT TO CLAUSES (D) AND (F) ABOVE, THE HOLDER WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE AND THE ISSUERS SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR
IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
[FORM OF ASSIGNMENT FOR RULE 144A NOTE]
---------------------------------------
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act for him.
[Check One]
-----------
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: __________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
____________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
----------------------------------------------------
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuers as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated: __________________
________________________________
NOTICE: To be executed byan executive officer
EXHIBIT C
---------
[FORM OF LEGEND FOR REGULATION S NOTE]
--------------------------------------
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
------------------------------------------
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act for him.
[Check One]
-----------
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: __________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
____________________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
----------------------------------------------------
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuers as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated: __________________
________________________________
NOTICE: To be executed byan executive officer
---
EXHIBIT D
---------
[FORM OF LEGEND FOR GLOBAL NOTE]
--------------------------------
Any Global Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a Rule
144A Note or Regulation S Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR 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.
EXHIBIT E
---------
Form of Certificate to BeDelivered in Connection withTransfers to Non-QIB
-------------------------------------------------------------------------
Accredited Investors
--------------------
___________, ____
Attention:
Re: Coaxial LLC ("Coaxial LLC") and Coaxial
Financing Corp. (together with Coaxial LLC,the "Issuers")
12 7/8% Senior Discount Notes
due 2008 (the "Notes")
-----------
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as
of August 21, 1998 relating to the Notes and we agree to be bound by, and
not to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Notes, we will do
so only (i) to an Issuer or any subsidiary thereof, (ii) pursuant to an
effective registration statement under the Securities Act, (iii) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A), (iv) to an institutional
"accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer of
the Notes, (v) outside the United States to persons other than U.S. persons
in offshore transactions meeting the requirements of Rule 904 of Regulation
S under the Securities Act, or (vi) pursuant to any other exemption from
registration under the Securities Act (if available), and we further agree
to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Issuers such certifications, legal
opinions and other information as you and the Issuers may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting each are able to
bear the economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Issuers are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By: Authorized Signature
EXHIBIT F
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
- ------------------------
__________, ____
Attention:
Re: Coaxial LLC ("Coaxial LLC") and Coaxial
Financing Corp. (together with Coaxial LLC,the "Issuers")
12 7/8% Senior Discount Notesdue 2008 (the "Notes")
-----------
Dear Sirs:
In connection with our proposed sale of $__________ aggregate principal amount
at maturity of the Notes, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or to a person
in the United States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting
on our behalf knows that the transaction has been prearranged with a buyer
in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Issuers are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: Authorized Signature
EXHIBIT G
---------
[FORM OF GUARANTEE]
-------------------
The undersigned (the "Guarantor") hereby conditionally guarantees, on a senior
unsecured basis, jointly and severally with all other guarantors under the
Indenture dated as of August 21, 1998 by and among Coaxial LLC, a Delaware
limited liability company ("Coaxial LLC"), Coaxial Financing Corp., a Delaware
corporation (together with Coaxial LLC, the "Issuers"), and Bank of Montreal
Trust Company, as trustee (as amended, restated or supplemented from time to
time, the "Indenture"), to the extent set forth in the Indenture and subject to
the provisions of the Indenture, (a) the payment of the Accreted Value of or the
principal of and premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the payment of interest on overdue
Accreted Value of or principal of, and premium, if any, and interest on the
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of the Issuers to the noteholders or the Trustee, all in accordance
with the terms set forth in Article 10 of the Indenture, and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
The obligations of the Guarantor to the noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
By:
---------------------------
Name: Kim D. Kelly
Title: Chief Operating Officer