No. 22-22257
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-3/A
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
Scott Cable Communications, Inc.
--------------------------------
(Name of applicant)
Four Landmark Square, Suite 302, Stamford CT 06901
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(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
Title of Class Amount
-------------- ------
15% Senior Subordinated Pay-in-Kind $49,500,000
Notes due March 18, 2002
Approximate date of proposed public offering: Not Applicable
Name and address of agent for service:
Bruce A. Armstrong
President and Chief Executive Officer
Scott Cable Communications, Inc.
Four Landmark Square, Suite 302
Stamford, CT 06901
(203) 323-1100
with copies to:
Stanley E. Bloch, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022
(212) 702-5700
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The Form T-3 of Scott Cable Communications, Inc. is hereby amended by including
a revised Exhibit T3C hereto.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, Scott
Cable Communications, Inc., a corporation organized and existing under the laws
of Texas (the "applicant"), has duly caused this amendment to the application to
be signed on its behalf by the undersigned, thereunto duly authorized, and its
seal to be hereunto affixed and attested, all in the City of Stamford, and State
of Connecticut, on the 11th day of March, 1997.
SCOTT CABLE COMMUNICATIONS, INC.
By: /s/ Bruce A. Armstrong
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Bruce A. Armstrong
President and Chief Executive Officer
(SEAL)
Attest: /s/ John M. Flanagan, Jr.
---------------------------
John M. Flanagan, Jr.
Senior Vice President and
Chief Financial Officer
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<PAGE>
EXHIBITS
Exhibit T3C. Indenture, dated as of December 18, 1996, between Scott Cable
Communications, Inc., as Issuer, and Fleet National Bank, as
Trustee, with respect to the 15% Senior Subordinated Pay-in-Kind
Notes due March 18, 2002.
4
Exhibit T3C
SCOTT CABLE COMMUNICATIONS, INC., as Issuer
AND
FLEET NATIONAL BANK, as Trustee
------------------------
INDENTURE
Dated as of December 18, 1996
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$49,500,000
15% Senior Subordinated Pay-in-Kind Notes due March 18, 2002
<PAGE>
INDENTURE
(15% Senior Subordinated)
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of December 18, 1996
Trust Indenture Act Indenture
Section Section
- ------------------- ---------
310(a)(1).................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b)....................................................... 7.8; 7.10; 13.2
(c)....................................................... N.A.
311(a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312(a)....................................................... 2.5
(b)....................................................... 13.3
(c)....................................................... 13.3
313(a)....................................................... 7.6
(b)(1).................................................... N.A.
(b)(2).................................................... 7.6
(c)....................................................... 7.6; 13.2
(d)....................................................... 7.6
314(a)....................................................... 4.10; 13.2
(b)....................................................... N.A.
(c)(1).................................................... 7.2; 13.4
(c)(2).................................................... 7.2; 13.4
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 11.5
(f)....................................................... N.A.
315(a)....................................................... 7.1(b)
(b)....................................................... 7.5; 13.2
(c)....................................................... 7.1(a)
(d)....................................................... 7.1(c)
(e)....................................................... 6.11
316(a)(last sentence)........................................ 2.9
(a)(1)(A)................................................. 6.5
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INDENTURE
(15% Senior Subordinated)
(a)(1)(B)................................................. 6.4
(a)(2).................................................... N.A.
(b)....................................................... 6.7
317(a)(1).................................................... 6.8
(a)(2).................................................... 6.9
(b)....................................................... 2.4
318(a) ...................................................... 13.1
(c)....................................................... 13.1
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N.A. means Not Applicable
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
INDENTURE
(15% Senior Subordinated)
TABLE OF CONTENT(1)
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.............................................. 1
Section 1.2. Incorporation by Reference of TIA........................ 14
Section 1.3. Time Periods............................................. 14
Section 1.4. References............................................... 15
Section 1.5. Issuer's Knowledge....................................... 15
ARTICLE II
THE SECURITIES
Section 2.1. Form and Dating.......................................... 15
Section 2.2. Execution and Authentication............................. 15
Section 2.3. Registrar and Paying Agent............................... 17
Section 2.4. Paying Agent To Hold Assets in Trust..................... 17
Section 2.5. Securityholder Lists..................................... 18
Section 2.6. Transfer and Exchange............................... .... 18
Section 2.7. Replacement Securities................................... 18
Section 2.8. Outstanding Securities................................... 19
Section 2.9. Treasury Securities...................................... 19
Section 2.10. Cancellation............................................. 19
Section 2.11. Defaulted Interest....................................... 20
Section 2.12. CUSIP Number............................................. 20
ARTICLE III
REDEMPTION
Section 3.1. Right of Redemption and Notices to Trustee............... 20
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(1) Note: This Table of Contents, shall not, for any purpose, be deemed to be
a part of the Indenture.
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INDENTURE
(15% Senior Subordinated)
Section 3.2. Selection of Securities To Be Redeemed................... 21
Section 3.3. Notice of Redemption..................................... 21
Section 3.4. Effect of Notice of Redemption........................... 22
Section 3.5. Deposit of Redemption Price.............................. 22
Section 3.6. Securities Redeemed in Part.............................. 22
ARTICLE IV
COVENANTS
Section 4.1. Payment of Securities.................................... 23
Section 4.2. Corporate Existence. ................................... 23
Section 4.3. SEC Reports and Other Information........................ 23
Section 4.4. Future Leases............................................ 24
Section 4.5. Future Acquisitions of Real Property..................... 24
Section 4.6. Compliance with Laws..................................... 24
Section 4.7. Taxes and Claims......................................... 24
Section 4.8. Maintenance of Properties and Insurance.................. 25
Section 4.9. Mandatory Redemption on a Permitted Asset Sale........... 26
Section 4.10. Borrowing................................................ 26
Section 4.11. Liens.................................................... 26
Section 4.12. Merger and Acquisition................................... 26
Section 4.13. Contingent Liabilities................................... 26
Section 4.14. Distributions............................................ 26
Section 4.15. Payments of Indebtedness................................. 27
Section 4.16. Investments, Loans....................................... 27
Section 4.17. Fundamental Business Changes............................. 27
Section 4.18. Sale or Transfer of Assets............................... 27
Section 4.19. Acquisition of Additional Properties..................... 28
Section 4.20. Issuance of Equity Interests............................. 28
Section 4.21. Transactions with Affiliates............................. 28
Section 4.22. Compliance with ERISA.................................... 28
ARTICLE V
DEFAULT AND REMEDIES
Section 5.1. Events of Default........................................ 30
Section 5.2. Acceleration............................................. 31
Section 5.3. Other Remedies........................................... 32
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INDENTURE
(15% Senior Subordinated)
Section 5.4. Waiver of Past Defaults.................................. 32
Section 5.5. Control by Majority...................................... 33
Section 5.6. Limitation on Suits...................................... 33
Section 5.7. Rights of Holders To Receive Payment..................... 33
Section 5.8. Collection Suit by Trustee............................... 34
Section 5.9. Trustee May File Proofs of Claim......................... 34
Section 5.10. Priorities............................................... 35
Section 5.11. Undertaking for Costs.................................... 35
ARTICLE VI
TRUSTEE
Section 6.1. Duties of Trustee........................................ 36
Section 6.2. Rights of Trustee........................................ 37
Section 6.3. Individual Rights of Trustee............................. 38
Section 6.4. Trustee's Disclaimer..................................... 38
Section 6.5. Notice of Default........................................ 38
Section 6.6. Reports By Trustee to Holders............................ 38
Section 6.7. Compensation and Indemnity............................... 39
Section 6.8. Replacement of Trustee................................... 39
Section 6.9. Successor Trustee by Merger, Etc......................... 41
Section 6.10. Eligibility; Disqualification............................ 41
Section 6.11. Co-Trustee............................................... 41
Section 6.12. Preferential Collection of Claims Against Issuer......... 42
ARTICLE VII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 7.1. Without Consent of Holders............................... 43
Section 7.2. With Consent of Holders.................................. 44
Section 7.3. Compliance with TIA...................................... 45
Section 7.4. Revocation and Effect of Consents........................ 45
Section 7.5. Notation on or Exchange of Securities.................... 46
Section 7.6. Trustee To Sign Amendments, Etc.......................... 46
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INDENTURE
(15% Senior Subordinated)
ARTICLE VIII
COLLATERAL AND SECURITY
Section 8.1. Collateral............................................... 46
Section 8.2. Possession and Use of Collateral......................... 47
Section 8.3. Release of Collateral.................................... 47
Section 8.4. Specified Releases of Collateral......................... 47
Section 8.5. Disposition of Collateral Without Release................ 50
Section 8.6. Purchaser Protected...................................... 51
Section 8.7. Authorization of Actions To Be Taken by Trustee
Under the Security Documents............................. 51
Section 8.8. Authorization of Receipt of Funds by Trustee Under
the Security Documents................................... 52
ARTICLE IX
MEETINGS OF SECURITYHOLDERS
Section 9.1. Purposes for Which Meetings May Be Called................ 52
Section 9.2. Manner of Calling Meetings............................... 53
Section 9.3. Call of Meetings by Issuer or Holders.................... 53
Section 9.4. Who May Attend and Vote at Meetings...................... 53
Section 9.5. Regulations May Be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment...................... 54
Section 9.6. Voting at the Meeting and Record To Be Kept.............. 55
Section 9.7. Exercise of Rights of Trustee or Holders May Not
Be Hindered or Delayed by Call of Meeting................ 55
ARTICLE X
SUBORDINATION
Section 10.1. Securities Subordinated to Senior Indebtedness........... 55
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INDENTURE
(15% Senior Subordinated)
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge of the Indenture............. 56
Section 11.2. Conditions to Satisfaction and Discharge of
the Indenture........................................... 56
ARTICLE XII
MISCELLANEOUS
Section 12.1. TIA Controls............................................ 57
Section 12.2. Notices................................................. 57
Section 12.3. Communications by Holders with Other Holders............ 58
Section 12.4. Certificate and Opinion as to Conditions Precedent...... 58
Section 12.5. Statements Required in Certificate or Opinion........... 58
Section 12.6. Rules by Trustee, Paying Agent, Registrar............... 59
Section 12.7. Governing Law........................................... 59
Section 12.8. No Adverse Interpretation of Other Agreements........... 59
Section 12.9. No Recourse Against Others.............................. 59
Section 12.10. Successors.............................................. 60
Section 12.11. Duplicate Originals..................................... 60
Section 12.12. Severability............................................ 60
Section 12.13. Actions by Trustee...................................... 60
Section 12.14. Notes Issued In Accordance With Plan.................... 60
Section 12.15. Deposit Agreement....................................... 60
Exhibit A Form of Security
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<PAGE>
INDENTURE
(15% Senior Subordinated)
INDENTURE dated as of December 18, 1996, between SCOTT CABLE
COMMUNICATIONS, INC., a Texas corporation ("Issuer"), and FLEET NATIONAL BANK, a
national banking association, as Trustee.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the 15% Senior
Subordinated Pay-in-Kind Notes due March 18, 2002:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Accountants: Deloitte & Touche LLP or any other nationally recognized
independent certified public accounting firm selected by Issuer.
Affiliate: any Person that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with
another Person. The term "control" means possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities or equity interests,
by contract or otherwise. For the purposes hereof Scott Management and Bruce A.
Armstrong shall be deemed to be an Affiliate of Issuer.
Agent: any Registrar, Paying Agent or co-Registrar of the Securities.
Assignment of Leases: a collateral assignment of leases executed by Issuer
in favor of Trustee.
Assignment of Management Agreement: a collateral assignment of the
Management Agreement executed by Issuer in favor of Trustee and acknowledged by
Scott Management.
Bankruptcy Court: the United States Bankruptcy Court for the District of
Delaware.
Bankruptcy Law: the United States Bankruptcy Code, Title 11 U.S. Code or
any similar federal, state or foreign law for the relief of debtors, any
successor statute thereto, and the rules, regulations and legally binding
policies promulgated thereunder, as amended and in effect from time to time.
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INDENTURE
(15% Senior Subordinated)
Board of Directors: with respect to any person, the Board of Directors of
such person or any committee of the Board of Directors of such person duly
authorized, with respect to any particular matter, to exercise the power of the
Board of Directors of such person.
Board Resolution: with respect to any person, a duly adopted resolution of
the Board of Directors of such person.
Business Day: any day other than a Saturday, Sunday or other day on which
banks in New York, New York, Boston, Massachusetts or Phoenix, Arizona are
authorized or required by law to close.
Capitalized Lease: any lease of Property, the obligations for the rental
of which are required to be capitalized in accordance with GAAP.
Cash Equivalents: the aggregate of Issuer's (i) cash on hand or in any
bank or trust company, and checks on hand and in transit, (ii) monies on deposit
in any money market account, and (iii) treasury bills, certificates of deposit,
commercial paper and readily marketable securities at current market value
having, in each instance, a maturity of not more than 180 days.
Chief Financial Officer: the chief financial officer of Issuer, who shall
be a duly elected officer of Issuer.
Class A Stock: the Class A Common Stock of Issuer.
Class B Stock: the Class B Common Stock of Issuer.
Class C Stock: the Class C Common Stock of Issuer.
Code: the Internal Revenue Code of 1986, any successor statute thereto,
and the rules, regulations and legally binding policies promulgated thereunder,
as amended and in effect from time to time.
Collateral: (i) all existing and after-acquired Property of Issuer,
including without limitation all of Issuer's existing and after-acquired
accounts, goods, equipment, inventory, fixtures, general intangibles,
instruments, chattel paper, documents, money, deposit accounts and investment
property and (ii) all proceeds of the foregoing.
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INDENTURE
(15% Senior Subordinated)
Custodian: any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
Default: any event which is, or after notice or passage of time or both
would be, an Event of Default.
Depositary: Fleet National Bank, a national banking association, not in
its individual capacity or in its capacity as Trustee, but solely as Depositary
under the Deposit Agreement.
Deposit Agreement: has the meaning set forth in Section 12.15 hereof.
Employee Benefit Plan: any employee benefit plan within the meaning of
Section 3(3) of ERISA which (i) is maintained for employees of Issuer or any
ERISA Affiliate or (ii) has at any time within the preceding six years been
maintained for the employees of Issuer or any ERISA Affiliate.
Environmental Laws: any and all federal, state and local laws that relate
to or impose liability or standards of conduct concerning public or occupational
health and safety or protection of the environment, as now or hereafter in
effect and as have been or hereafter may be amended or reauthorized, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. ss. 9601 et seq.), the Hazardous Materials
Transportation Act (42 U.S.C. 1802 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal Water Pollution Control
Act (33 U.S.C. ss. 1251 et seq.), the Toxic Substances Control Act (15 U.S.C.
ss. 2601 et seq.), the Clean Air Act (42 U.S.C. ss. 7901 et seq.), the National
Environmental Policy Act (42 U.S.C. ss. 4231 et seq.), the Refuse Act (33 U.S.C.
ss. 407 et seq.), the Safe Drinking Water Act (42 U.S.C. ss. 300(f) et seq.),
the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.), and all
rules, regulations, codes, ordinances and guidance documents promulgated or
published thereunder, and the provisions of any licenses, permits, orders and
decrees issued pursuant to any of the foregoing.
ERISA: the Employee Retirement Income Security Act of 1974, and any
successor statute thereto, and the rules, regulations and legally binding
policies promulgated thereunder, as amended and in effect from time to time.
ERISA Affiliate: any Person who is a member of a group which is under
common control with Issuer, who together with Issuer is treated as a single
employer within the meaning of Section 414(b), (c) and (m) of the Code.
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INDENTURE
(15% Senior Subordinated)
Event of Default: as defined in Section 5.1.
Exchange Act: the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Fair Market Value with respect to any property or assets, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction.
Franchise: an authorization, or renewal thereof, whether in the form of a
franchise, permit, license, resolution, contract, certificate, agreement or
otherwise, issued by a Franchisor authorizing the construction and/or operation
of a cable system.
Franchise Agreement: any agreement pursuant to which a Franchise is
granted to a Issuer and all permitted amendments, modifications and supplements
thereto.
Franchisor: any Governmental Body empowered by federal, state or local law
to grant a Franchise.
GAAP: generally accepted accounting principles as in effect from time to
time, which shall include but shall not be limited to the official
interpretations thereof by the Financial Accounting Standards Board or any
successor thereto.
Governmental Body: any foreign, federal, state, municipal or other
government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof or any court or arbitrator.
Holder: the person in whose name a Security is registered on the
Registrar's books.
Indebtedness: all liabilities, obligations and reserves, contingent or
otherwise, which, in accordance with GAAP, would be reflected as a liability on
a balance sheet or would be required to be disclosed in a financial statement,
including, without duplication: (i) Indebtedness for Borrowed Money, (ii)
obligations secured by any Lien upon Property,(iii) guaranties, letters of
credit and other contingent obligations and (iv) liabilities in respect of
unfunded vested benefits under any Pension Plan or in respect of withdrawal
liabilities incurred under ERISA by Issuer or any ERISA Affiliate to any
Multiemployer Plan.
Indebtedness for Borrowed Money: without duplication, all Indebtedness (i)
in respect of money borrowed, (ii) evidenced by a note, debenture or other like
written obligation to pay
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INDENTURE
(15% Senior Subordinated)
money (including, without limitation, all of Issuer's Obligations set forth in
(i) thereof, Permitted Senior Indebtedness and Subordinated Indebtedness), (iii)
in respect of rent or hire of Property under Capitalized Leases or for the
deferred purchase price of Property, (iv) in respect of obligations under
conditional sales or other title retention agreements and (v) all guaranties of
any or all of the foregoing.
Indenture: this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.
Indenture Instruments:
(i) Indenture;
Securities;
(ii) Subordination Agreement (Junior) and Subordination Agreement
(Senior);
(iii) Security Instruments;
(iv) Uniform Commercial Code financing statements filed in
connection with the issuance of the Securities; and
(v) other instruments and documents as Trustee and/or Holders
reasonably may require in connection with the transactions
contemplated by this Indenture.
Interest Payment Date: the stated maturity of an installment of interest
on the Securities.
Issue Date: the date of first issuance of the Securities pursuant to this
Indenture.
Issuer: the party named as such above and shall include, unless the
context requires otherwise, any subsidiary.
Issuer Capital Stock: all of the issued and outstanding capital stock of
Issuer and all warrants, options and other rights to purchase capital stock of
the Issuer.
Issuer's Obligations: (i) any and all Indebtedness due or to become due,
now existing or hereafter arising, of Issuer to Holder pursuant to the terms of
this Indenture or any other
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INDENTURE
(15% Senior Subordinated)
Indenture Instrument and (ii) the performance of the covenants of Issuer
contained in the Indenture Instruments.
Junior Subordinated Notes: the $38,925,797 principal amount of the 16%
Junior Subordinated Pay-in-Kind Notes issued in one or more series due July 18,
2002, including any securities issued in lieu of cash interest payments thereon.
Junior Subordinated Notes Indenture: the indenture between Issuer and
Fleet National Bank, as Trustee dated as of December 18, 1996, as amended or
supplemented from time to time in accordance with the terms thereof.
Landlord: a lessor under a lease of real property.
Landlord Consent and Waiver: a landlord consent and waiver in favor of
Trustee executed by the Landlord under each Lease.
Lease: any lease of real estate under which Issuer is the lessee.
Leasehold Property: any real estate which is the subject of a Lease.
Lien: any mortgage, pledge, assignment, lien, charge, encumbrance or
security interest of any kind, or the interest of a vendor or lessor under any
conditional sale agreement, Capitalized Lease or other title retention
agreement.
Loan Agreement: the Loan Agreement, dated as of the Issue Date, by and
among the Issuer as borrower and FINOVA Capital Corporation, in its individual
capacity and as agent for all lenders thereunder, as the same may be amended,
extended, renewed, restated, supplemented or otherwise modified (in each case,
in whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time. The term "Loan Agreement"
shall include all related or ancillary documents, including, without limitation,
any guarantee agreements and security documents.
Management Agreement: the Management Agreement dated as of December 18,
1996 between Issuer and Scott Management.
Material Adverse Effect: (i) a material adverse effect upon the business,
operations, Property, profits or condition (financial or otherwise) of Issuer or
upon the validity, enforceability or priority of the Security Interests or (ii)
a material impairment of the ability
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INDENTURE
(15% Senior Subordinated)
of Issuer to perform its obligations under any Loan Instrument to which it is a
party or of Trustee or any Holder to enforce or collect any of Issuer's
Obligations.
Maturity Date: March 18, 2002.
Mortgages: a mortgage on each parcel of Real Property executed by Issuer
in favor of Trustee.
Multiemployer Plan: any multiemployer plan as defined pursuant to Section
3(37) of ERISA to which Issuer or any ERISA Affiliate makes, or accrues an
obligation to make, contributions, or has made, or been obligated to make,
contributions within the preceding six years.
Net Sale Proceeds: the gross proceeds payable to Issuer in connection with
any Permitted Asset Sale, less all reasonable, customary and documented costs
and expenses of such Permitted Asset Sale; provided, however, that Issuer shall
not be deemed in receipt of any Net Sales Proceeds required to be deposited in
escrow to secure customary indemnities under documents executed in connection
with the Permitted Asset Sale giving rise to such Net Sale Proceeds until such
Net Sale Proceeds are released from escrow to Issuer.
Officer: with respect to any Person, the Chairman of the Board, the
President, any Vice President, the Chief Financial Officer, the Controller, or
the Secretary of such Person.
Officers' Certificate: with respect to any person, a certificate signed by
two Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of such person and otherwise complying with the requirements of
Sections 12.4 and 12.5.
Operating Lease: any lease, other than Pole Attachment Agreements, which,
under GAAP, is not required to be capitalized.
Opinion of Counsel: a written opinion from legal counsel who is reasonably
acceptable to Trustee complying with the requirements of Sections 12.4 and 12.5.
Unless otherwise required by Trustee, the legal counsel may be an employee of or
counsel to Issuer.
Ordinances: the statutes, laws, rules, regulations, resolutions and
ordinances, as amended and in effect from time to time, pursuant to which a
Franchise may be granted.
Paying Agent: as defined in Section 2.3.
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INDENTURE
(15% Senior Subordinated)
PBGC: the Pension Benefit Guaranty Corporation or any Governmental Body
succeeding to the functions thereof.
Pension Plan: any Employee Benefit Plan, other than a Multiemployer Plan,
which is subject to the provisions of Part 3 of Subtitle B of Title I of ERISA,
Title IV of ERISA, or Section 412 of the Code and which (i) is maintained for
employees of Issuer or any ERISA Affiliate, or (ii) has at any time within the
preceding six years been maintained for the employees of Issuer or any ERISA
Affiliates.
Permitted Asset Sale: any bona fide sale of any Property of Issuer in an
arm's-length transaction to a Person who is not an Affiliate of Issuer, except
to the extent permitted by Section 4.21, provided that the gross proceeds
payable to Issuer in connection therewith are (i) not less than the Fair Market
Value of such Property and (ii) payable solely in cash.
Permitted Asset Sale Purchase Date: as defined in Section 4.9.
Permitted Liens: any of the following Liens:
(i) the Security Interests;
(ii) the Permitted Senior Indebtedness Liens;
(iii) Liens for taxes or assessments and similar charges, which
either are (A) not delinquent or (B) being contested
diligently and in good faith by appropriate proceedings, and
as to which the Issuer has set aside reserves on its books;
(iv) statutory Liens, such as mechanic's, materialman's,
warehouseman's, carrier's or other like Liens, incurred in
good faith in the ordinary course of business, provided that
the underlying obligations relating to such Liens are paid in
the ordinary course of business, or are being contested
diligently and in good faith by appropriate proceedings and as
to which Issuer has set aside reserves on its books, or the
payment of which obligations are otherwise secured;
(v) zoning ordinances, easements, licenses, reservations,
provisions, covenants, conditions, waivers or restrictions on
the use of Property and other title exceptions;
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INDENTURE
(15% Senior Subordinated)
(vi) Liens in respect of judgments or awards with respect to which
no Event of Default would exist pursuant to subsection 5.1(g);
(vii) Liens to secure payment of insurance premiums (A) to be paid
in accordance with applicable laws in the ordinary course of
business relating to payment of worker's compensation, or (B)
that are required for the participation in any fund in
connection with worker's compensation, unemployment insurance,
old-age pensions or other social security programs; and
(viii) the Subordinated Liens.
Permitted Prior Liens: any of the following Liens:
(i) the Permitted Senior Indebtedness Liens;
(ii) the Permitted Liens described in clauses (iii) and (iv) of the
definition of Permitted Liens that are accorded priority to
the Security Interests by law; and
(iii) the Permitted Liens described in clauses (v) and (vii) of the
definition of Permitted Liens, subject to the limitations set
forth therein.
Permitted Senior Indebtedness: Indebtedness (i) under the Loan Agreement
issued in connection therewith and any refinancing thereof to the extent such
refinancing does not shorten the Weighted Average Life to Maturity of such
Indebtedness or (ii) incurred to purchase tangible personal property or
Indebtedness incurred to lease tangible personal property pursuant to
Capitalized Leases, provided that (x) such Indebtedness existing as of the Issue
Date shall not exceed $50,000, (y) during any Yearly Period after the Issue Date
the amount of such Indebtedness at any one time outstanding during such Yearly
Period shall not exceed $100,000, and (z) no Event of Default exists at the time
or will be caused as a result of the incurrence of any Indebtedness described in
clause (y).
Permitted Senior Indebtedness Liens: Liens that secure Permitted Senior
Indebtedness, provided that, with respect to such Indebtedness described in
clause (ii) of the definition thereof, each such Lien attaches only to the
Property purchased or leased with the proceeds of the Permitted Senior
Indebtedness incurred with respect to such Property.
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Person: any individual, firm, corporation, business enterprise, trust,
association, joint venture, partnership, Governmental Body or other entity,
whether acting in an individual, fiduciary or other capacity.
Plan of Reorganization: Debtors' Second Amended Joint Plan of
Reorganization dated October 31, 1996, as amended or modified, in Case No.
96-166 (PJW) (Jointly Administered) filed with the Bankruptcy Court.
Pole Attachment Agreement: any agreement, whether now in existence or
hereafter created, between Issuer and a municipality or public or private
utility company pursuant to which Issuer is permitted to use the utility poles,
trenches or easements of such public utility on which to string or in which to
bury the coaxial, fiber optic or other cable used to operate any portion of the
System.
Pole Attachment Authority: any Person who has entered into a Pole
Attachment Agreement with Issuer.
Property: all types of real, personal or mixed property and all types of
tangible or intangible property.
Qualified Depository: a member bank of the Federal Reserve System having a
combined capital and surplus of at least $100,000,000.
Real Property: all interests in real estate directly or indirectly owned
by Issuer other than the Leasehold Property.
Record Date: the Record Dates specified in the Securities; provided that
if any such date is not a Business Day, the Record Date shall be the first day
immediately preceding such specified day that is a Business Day.
Redemption Date: when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Securities.
Redemption Price: when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Securities.
Registrar: as defined in Section 2.3.
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Scott Management: Scott Cable Management Company, Inc., a Connecticut
corporation.
Scott Management Fees: the management fees payable to Scott Management
pursuant to Section 5 of the Management Agreement.
SEC: the Securities and Exchange Commission.
Secondary Securities: as defined in Section 2.2.
Securities: the 15% Senior Subordinated Pay-in-Kind Notes due March 18,
2002 of Issuer, including any Secondary Securities issued in respect thereof, in
each case, issued pursuant to this Indenture, as the same may be modified or
amended from time to time and refinancings thereof, to the extent such
refinancing indebtedness is permitted to be incurred under this Indenture.
Securities Act: the Securities Act of 1933, the Exchange Act, any
successor statute thereto, and the rules, regulations and legally binding
policies of the Securities and Exchange Commission promulgated thereunder, as
amended and in effect from time to time.
Security Agreement: a security agreement executed by Issuer in favor of
Trustee.
Security Instruments: collectively, the Security Agreement, the Assignment
of Leases, the Mortgages and the Assignment of Management Agreement.
Security Interests: the Liens in the Collateral granted to Trustee
pursuant to the Security Instruments and any other document now or hereafter
executed by Issuer which purports to grant a Lien on the Property of Issuer in
favor of Trustee.
Senior Creditors: the holders of the Senior Notes.
Senior Notes: any promissory notes executed and delivered by Issuer to
evidence Indebtedness under the Loan Agreement.
Shareholders: collectively, Scott Management, Media/Communications
Partners Limited Partnership, a Delaware limited partnership, Chestnut Street
Partners, Inc., a Massachusetts corporation, Milk Street Partners, Inc., a
Massachusetts corporation, TA Investors, a Massachusetts general partnership,
Northeast Ventures II, a Connecticut general
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partnership, Allstate Insurance Company, an Illinois insurance corporation and
Fleet National Bank, as Depositary.
Subordinated Credit Instruments: the Junior Subordinated Notes Indenture,
the Junior Subordinated Notes and all other documents and instruments executed
in connection with the Indebtedness evidenced thereby.
Subordinated Creditors: the holders of the Junior Subordinated Notes.
Subordinated Indebtedness: all Indebtedness now or hereafter owed by
Issuer to the Subordinated Creditors, whether pursuant to the Subordinated
Credit Instruments or otherwise.
Subordinated Liens: the Liens in the Collateral granted by Issuer to Fleet
National Bank as trustee under the Subordinated Credit Instruments.
Subordination Agreement (Junior): a subordination agreement among Trustee,
Issuer, and the trustee of the Junior Subordinated Debenture Indenture.
Subordination Agreement (Senior): a subordination agreement among Trustee,
Issuer, the trustee of the Junior Subordinated Debenture Indenture and the
Senior Creditors.
Subsidiary: any Person in which Issuer owns or controls, directly or
indirectly, 25% or more of the securities or equity interests of such Person.
Termination Event: (i) a "Reportable Event" described in Section 4043 of
ERISA for which the thirty day notice requirement has not been waived; or (ii)
the withdrawal of Issuer or any ERISA Affiliate from a Pension Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2); or (iii) the termination of a Pension Plan, the filing of a notice
of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA; or (iv) the institution
of proceedings to terminate, or the appointment of a trustee with respect to,
any Pension Plan by the PBGC; or (v) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the partial or
complete withdrawal of Issuer or any ERISA Affiliate from a Multiemployer Plan;
or (vii) the imposition of a lien pursuant to Section 412 of the Code or Section
302 of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245
of ERISA; or (ix) any event or condition which results in the termination of a
Multiemployer Plan under
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INDENTURE
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Section 4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
TIA: the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb),
as amended, as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 7.3.
Trustee: the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and thereafter
means such successor.
Trust Officer: any officer of Trustee assigned by Trustee to administer
its corporate trust matters.
U.S. Government Obligations: direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
U.S. Legal Tender: such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts.
Weighted Average Life to Maturity: when applied to any Indebtedness at any
date, the number of years obtained by dividing (i) the sum of the products
obtained by multiplying (x) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (y) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment, by (ii) the then outstanding principal amount of
such Indebtedness.
Yearly Period: each fiscal year of Issuer; provided that the first Yearly
Period shall begin on the Issue Date and shall end on December 31, 1997.
Section 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following TIA terms used in this Indenture have the following meanings:
Commission: the SEC.
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indenture securities: the Securities.
indenture security holder: a Holder.
indenture to be qualified: this Indenture.
indenture trustee or institutional trustee: Trustee.
obligor on the indenture securities: Issuer or any other obligor on the
Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.3. Time Periods.
In this Indenture and the other Indenture Instruments, in the computation
of periods of time from a specified date to a later specified date, (i) the word
"from" means "from and including," (ii) the words "to" and "until" each mean
"to, but excluding" and (iii) the words "through," "end of" and "expiration"
each mean "through and including." Unless otherwise specified, all references in
this Indenture and the other Indenture Instruments to (i) a "month" shall be
deemed to refer to a calendar month, (ii) a "quarter" shall be deemed to refer
to a calendar quarter and (iii) a "year" shall be deemed to refer to a calendar
year.
Section 1.4. References.
All references in this Indenture to "Article," "Section," "subsection,"
"subparagraph," "clause" or "Exhibit," unless otherwise indicated, shall be
deemed to refer to an Article, Section, subsection, subparagraph, clause or
Exhibit, as applicable, of this Indenture.
Section 1.5. Issuer's Knowledge.
Any statements, representations or warranties that are based upon the best
knowledge of Issuer or an officer thereof shall be deemed to have been made
after due inquiry by Issuer or an officer, as applicable, with respect to the
matter in question.
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ARTICLE II
THE SECURITIES
Section 2.1. Form and Dating.
The Securities and Trustee's certificate of authentication shall be
substantially in the form of Exhibit A. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. Issuer
and Trustee shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent
applicable, Issuer and Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 2.2. Execution and Authentication.
An Officer or an Assistant Secretary, shall sign (either of whom shall, in
each case, have been duly authorized by all requisite corporate actions) the
Securities for Issuer by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
Trustee shall authenticate Securities, excluding Secondary Securities, for
original issue in the aggregate principal amount of up to $49,500,000 upon a
written order of Issuer in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $49,500,000, except
for any Securities that may be issued pursuant to the immediately following
paragraph and except as provided in Section 2.7 and 2.8. Upon the written order
of
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Issuer in the form of an Officers' Certificate, Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
change of Issuer.
Issuer shall, on each Interest Payment Date prior to (and including) the
Interest Payment Date five years after the Issue Date, pay interest in
additional Securities ("Secondary Securities") in lieu of the payment in whole
of interest in cash on the Securities as provided in paragraph 1 of the
Securities. Issuer shall give written notice to Trustee of the amount of
interest to be paid in Secondary Securities not less than five Business Days
prior to the relevant Interest Payment Date, and Trustee or an authenticating
agent (upon written order of Issuer signed by an Officer of Issuer given not
less than five nor more than 45 days prior to such Interest Payment Date) shall
authenticate for original issue (pro rata to each Holder of any Securities of
such record date) Secondary Securities in an aggregate principal amount equal to
the amount of cash interest not paid on such Interest Payment Date, rounded to
the nearest dollar. Except as set forth in the following paragraph each issuance
of Secondary Securities in lieu of the payment of interest in cash on the
Securities shall be made pro rata with respect to the outstanding Securities,
and Issuer shall have the right to aggregate amounts of interest payable in the
form of Secondary Securities to a Holder of outstanding Securities and issue to
such Holder a single Secondary Security in payment thereof. Any Secondary
Securities may be denominated a separate series if Issuer deems it necessary to
do so in order to comply with any law or other applicable regulation or
requirement, with appropriate distinguishing designations. Notwithstanding the
forgoing and subject to the Subordination Agreement (Senior), Issuer shall have
the option to pay interest in cash (upon written order of Issuer signed by and
Officer of Issuer given not less than five or more than 45 days prior to an
Interest Payment Date).
Trustee may appoint an authenticating agent reasonably acceptable to
Issuer to authenticate Securities. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Securities whenever Trustee may do so.
Each reference in this Indenture to authentication by Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Issuer and Affiliates of Issuer.
Section 2.3. Registrar and Paying Agent.
Issuer shall maintain an office or agency in the Borough of Manhattan,
The City of New York, where (a) Securities may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Securities may be
presented or surrendered for payment ("Paying Agent") and (c) notices and
demands to or upon Issuer in respect of the Securities and this Indenture may be
served. Issuer may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
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such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Registrar shall keep a
register of the Securities and of their transfer and exchange. Issuer, upon
notice to Trustee, may have one or more co-Registrars and one or more additional
paying agents reasonably acceptable to Trustee. The term "Paying Agent" includes
any additional paying agent. Issuer initially appoints Trustee as Registrar and
Paying Agent until such time as Trustee has resigned or a successor has been
appointed. The Trustee's office in the City of New York, c/o First Chicago Trust
Company, 14 Wall Street, 8th Floor, New York, New York 10005, Attn: Corporate
Trust Operations, shall be the office of the Issuer referred to in the first
sentence of this Section 2.3.
Issuer shall enter into an appropriate agency agreement with any Agent not
a party to this Indenture, which agreement shall implement the provisions of
this Indenture that relate to such Agent. Issuer shall notify Trustee, in
advance, of the name and address of any such Agent. If Issuer fails to maintain
a Registrar or Paying Agent within the Borough of Manhattan, The City of New
York, Trustee shall act as such.
Section 2.4. Paying Agent To Hold Assets in Trust.
Issuer shall require each Paying Agent other than Trustee to agree in
writing that each Paying Agent shall hold in trust for the benefit of Holders or
Trustee all assets and/or Secondary Securities held by Paying Agent for the
payment of principal of, or interest on, the Securities (whether such assets
have been distributed to it by Issuer or any other obligor on the Securities),
and that it shall notify Trustee of any Default by Issuer (or any other obligor
on the Securities) in making any such payment. Issuer at any time may require a
Paying Agent to distribute all assets and/or Secondary Securities held by it to
Trustee and account for any assets disbursed and Trustee may at any time during
the continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets and/or Secondary Securities
held by it to Trustee and to account for any assets so distributed. Upon
distribution to Trustee of all assets that shall have been delivered by Issuer
to Paying Agent, Paying Agent shall have no further liability for such assets
and/or Secondary Securities.
Section 2.5. Securityholder Lists.
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 Holders. If
Trustee is not the Registrar, Issuer shall furnish to Trustee on or before each
Interest Payment Date and at such other
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times as Trustee may request in writing a list in such form and as of such date
as Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by Trustee.
Section 2.6. Transfer and Exchange.
When a Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of the Registrar are met. The Registrar need not
transfer or exchange any Securities selected for redemption. Also, it need not
transfer or exchange any Securities for a period of 30 days before a selection
of Securities to be redeemed. When Securities are presented to the Registrar or
a co-registrar with a request to exchange them for an equal principal amount of
Securities of other authorized denominations, the Registrar shall make the
exchange as requested if the requirements of the Registrar are met. Issuer shall
cooperate with the Registrar in meeting its requirements. To permit transfers,
registration and exchanges, Trustee shall authenticate Securities at the
Registrar's request. No service charge shall be made for any transfer,
registration or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith, but
not for any exchange pursuant to Section 2.10, 3.6 or 7.5.
Section 2.7. Replacement Securities.
If a mutilated Security is surrendered to Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
Issuer shall issue and Trustee shall authenticate a replacement Security if
Trustee's requirements are met. If required by Trustee or Issuer, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both Issuer and Trustee, to protect Issuer, Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced. Issuer may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every replacement Security
shall constitute an additional obligation of Issuer.
Section 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by Trustee, including the Secondary Securities, except those
cancelled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because Issuer or any of its Affiliates holds the Security.
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If a Security is replaced pursuant to Section 2.7 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date Paying Agent holds U.S. Legal
Tender or U.S. Government Obligations sufficient to pay all of the principal and
interest due on the Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by Issuer or any of its Affiliates shall be disregarded, except
that, for the purposes of determining whether Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that Trustee
knows or has reason to know are so owned shall be disregarded. Notwithstanding
the foregoing and except as otherwise provided by the TIA, 662/3% of Securities
not owned by Issuer or any of its Affiliates shall be sufficient to approve any
such direction, waiver or consent.
Section 2.10. Cancellation.
Issuer at any time may deliver Securities to Trustee for cancellation. The
Registrar and Paying Agent shall forward to Trustee any Securities surrendered
to them for transfer, exchange or payment. Trustee, or at the direction of
Trustee, the Registrar or Paying Agent, and no one else, shall cancel and, at
the written direction of Issuer, shall dispose of all Securities surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.7, Issuer may
not issue new Securities to replace Securities that it has paid or delivered to
Trustee for cancellation. If Issuer or any Subsidiary shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same are
surrendered to Trustee for cancellation pursuant to this Section 2.10.
Section 2.11. Defaulted Interest.
If Issuer defaults in a payment of interest on the Securities, it shall,
unless Trustee fixes another record date pursuant to Section 5.10, pay the
defaulted interest, plus (to the
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extent lawful) any interest payable on the defaulted interest, to the persons
who are Holders on a subsequent special record date, which date shall be the
fifteenth day next preceding the date fixed by Issuer for the payment of
defaulted interest or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special record date, Issuer
shall mail to each Holder, with a copy to Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
Section 2.12. CUSIP Number.
Issuer in issuing the Securities may use a "CUSIP" number, and if so,
Trustee shall use the CUSIP number 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 Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
ARTICLE III
REDEMPTION
Section 3.1. Right of Redemption and Notices to Trustee.
Redemption of Securities, as permitted by any provision of this Indenture,
shall be made in accordance with such provision and this Article III. The Issuer
shall have the right to redeem all or any part of the Securities at 100% of
principal amount of the Security being redeemed at any time and from time to
time, in each case including accrued and unpaid interest to the Redemption Date.
In the event Issuer elects to redeem Securities in accordance with this
Section 3.1 hereof or is required to redeem Securities in accordance with
Section 4.9 hereof, Issuer shall notify Trustee of the Redemption Date and the
aggregate principal amount of the Securities to be redeemed and whether it wants
Trustee to give notice of redemption to the Holders (at Issuer's expense) at
least 15 days (unless a shorter notice shall be satisfactory to Trustee) but not
more than 60 days before the Redemption Date.
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Section 3.2. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, Trustee shall
redeem pro-rata.
Section 3.3. Notice of Redemption.
At least 10 days but not more than 60 days before a Redemption Date,
Issuer shall mail a notice of redemption by first class mail to each Holder
whose Securities or portions thereof are to be redeemed at such Holder's
registered address, with a copy to Trustee. At Issuer's request, Trustee shall
give the notice of redemption in Issuer's name and at Issuer's expense. Each
notice for redemption shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of Paying Agent;
(4) that Securities or portions thereof called for redemption must
be surrendered to Paying Agent to collect the Redemption Price;
(5) that, unless Issuer defaults in making the redemption payment,
interest on Securities or portions thereof called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right of
the Holders of such Securities or portions thereof is to receive payment
of the Redemption Price upon surrender to Paying Agent of the Securities
or portions thereof redeemed;
(6) if any Security is being redeemed in part, the portion of the
aggregate principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new Security
or Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued; and
(7) if fewer than all of the Securities are to be redeemed, the
aggregate principal amount of Securities to be redeemed and the aggregate
principal amount of Securities to be outstanding after such partial
redemption.
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Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3,
Securities or portions thereof called for redemption become due and payable on
the Redemption Date and at the Redemption Price, provided that if a notice of
redemption is given in contemplation of a Permitted Asset Sale and such sale
does not occur, then this Section 3.4 shall not be applicable. Upon surrender to
Trustee or Paying Agent, such Securities or portions thereof called for
redemption shall be paid at the Redemption Price.
Section 3.5. Deposit of Redemption Price.
On or before noon on the Redemption Date, Issuer shall deposit with Paying
Agent U.S. Legal Tender sufficient to pay the Redemption Price of all Securities
or portions thereof to be redeemed on that date (other than Securities or
portions thereof called for redemption on that date which have been delivered by
Issuer to Trustee for cancellation). Paying Agent shall promptly return to
Issuer any U.S. Legal Tender so deposited which is not required for that purpose
upon the written request of Issuer, except with respect to monies owed as
obligations to Trustee pursuant to Article VI.
If Issuer complies with the preceding paragraph, then, unless Issuer
defaults in the payment of such Redemption Price, interest on the Securities or
portions thereof to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
If a Security or portion thereof is redeemed on or after a Record Date but
on or prior to the related Interest Payment Date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Security was registered
at the close of business on such Record Date. If any Security or portion thereof
called for redemption shall not be so paid upon surrender for redemption because
of the failure of Issuer to comply with the first paragraph of this Section 3.5,
interest shall be paid on the unpaid principal, from the Redemption Date until
such principal is paid, and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities and
in Section 4.1 hereof.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, Trustee shall
authenticate for the Holder a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
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ARTICLE IV
COVENANTS
Until all of Issuer's Obligations are paid and performed in full Issuer
agrees that it shall:
Section 4.1. Payment of Securities.
(a) Pay the principal amount of, and interest on, as the case may
be, the Securities on the dates and in the manner provided in the
Securities. An installment shall be considered paid on the date it is due
if Trustee or Paying Agent holds on that date U.S. Legal Tender and/or, to
the extent required by Section 2.2, Secondary Securities designated for
and sufficient to pay the installment.
(b) Pay interest on overdue principal (including post-petition
interest in any proceeding under any Bankruptcy Law, to the extent
allowable as a claim in any such proceeding) at the same rate borne by the
Securities and it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law, to the extent allowable as a
claim in any such proceeding) on overdue installments of interest (without
regard to any applicable grace period) at the same rate borne by the
Securities, to the extent lawful.
Section 4.2. Corporate Existence.
Issuer shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence in accordance with its
organizational documents and the rights (charter and statutory) of Issuer.
Section 4.3. SEC Reports and Other Information.
To the extent permitted by applicable law or regulation, whether or not
Issuer is subject to the requirements of Section 13 or 15(d) of the Exchange
Act, Issuer shall file with the SEC all quarterly and annual reports and such
other information, documents or other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) required to
be filed pursuant to such provisions of the Exchange Act. Issuer shall file with
the Trustee, within five days after it files the same with the SEC, copies of
the quarterly and annual reports and the information, documents, and other
reports (or
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copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that it is required to file with the SEC pursuant to this
Section 4.3. Issuer shall also comply with the other provisions of TIA Section
314(a). If Issuer is not permitted by applicable law or regulations to file the
aforementioned reports, Issuer (at its own expense) shall file with the Trustee
and mail, or cause the Trustee to mail, to Holders at their addresses appearing
in the register of Securities maintained by the Registrar at the time of such
mailing within five days after it would have been required to file such
information with the SEC, all information and financial statements, including
any notes thereto and with respect to annual reports, an auditors' report by an
accounting firm of established national reputation, and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to the disclosure that Issuer would have been required to include in
annual and quarterly reports, information, documents or other reports,
including, without limitation, reports on Forms 10-K, 10-Q and 8-K, if Issuer
was subject to the requirements of such Section 13 or Section 15(d) of the
Exchange Act.
Section 4.4. Future Leases.
Deliver to Trustee, concurrently with the execution by Issuer, as lessee,
of any lease pertaining to real property, either a second leasehold mortgage
upon or a collateral assignment of such lease in favor of Trustee but only to
the extent such leasehold mortgage or collateral assignment is first required by
the Senior Creditors, and is delivered to the Senior Creditors, to secure the
Senior Notes.
Section 4.5. Future Acquisitions of Real Property.
Deliver to Trustee a second mortgage or deed of trust in favor of Trustee
on any real property acquired by the Issuer after the Issue Date, but only to
the extent such mortgage or deed of trust is first required by the Senior
Creditors, and is delivered to the Senior Creditors, to secure the Senior Notes.
Section 4.6. Compliance with Laws.
Comply with all Cable Statutes and Regulations and all other federal,
state and local laws, ordinances, requirements and regulations and all
judgments, orders, injunctions and decrees applicable to Issuer and its
operations, except such as are being contested in good faith and by appropriate
proceedings and except for such non-compliances as would not have a Material
Adverse Effect.
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Section 4.7. Taxes and Claims.
Pay and discharge all material taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits, or upon any Property
belonging to it, prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a Lien (other than a Permitted
Lien) upon the Property of Issuer, provided that so long as no Lien has attached
to the Property of Issuer as a result of any of the foregoing, Issuer shall not
be required by this Section 4.7 to pay any such amount if the same is being
contested diligently and in good faith by appropriate proceedings and as to
which Issuer has set aside reserves on its books.
Section 4.8. Maintenance of Properties and Insurance.
(a) Issuer shall cause all properties used or useful to the conduct of its
business to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in its judgment may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
unless the failure to so maintain such properties (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of Issuer; provided, however, that nothing in this Section
4.8 shall prevent Issuer from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business, or (ii) is otherwise
permitted by this Indenture.
(b) Issuer shall provide or cause to be provided insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of Issuer, are adequate and appropriate for the
conduct of the business of Issuer in a prudent manner, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices of Issuer or (ii)
customary, in the reasonable, good faith opinion of Issuer, for corporations
similarly situated in the industry, unless the failure to provide such insurance
(together with all other such failures) would not have a Material Adverse
Effect.
(c) Issuer shall keep proper books of record and account, in which full
and correct entries shall be made of all business and financial transactions of
Issuer and reflect on its financial statements adequate accruals and
appropriations to reserves, all in accordance with GAAP.
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(d) Nothing in this Section 4.8 shall be deemed to limit any obligations
of Issuer under any of the Security Instruments.
Section 4.9. Mandatory Redemption on a Permitted Asset Sale.
Subject to the terms of the Subordination Agreement (Senior), until the
principal amount of the Securities and all other amounts due under this
Indenture are paid in full, Issuer shall pay to the Trustee for the benefit of
Holders an amount equal to the amount of all Net Sale Proceeds from a Permitted
Asset Sale no later than thirty days after such sale (the date of such payment
to the Trustee for the benefit of Holders, the "Permitted Asset Sale Purchase
Date"). Such redemption shall be conducted in accordance with Article III
hereof.
Section 4.10. Borrowing.
Without the prior approval of 100% of the Issuer's Board of Directors, not
create, incur, assume or suffer to exist any liability for Indebtedness for
Borrowed Money except (i) Issuer's Obligations, (ii) the Subordinated
Indebtedness and (iii) Permitted Senior Indebtedness.
Section 4.11. Liens.
Without the prior approval of 100% of the Issuer's Board of Directors, not
create, incur, assume or suffer to exist any Lien upon any of its Property,
whether now owned or hereafter acquired, except Permitted Liens.
Section 4.12. Merger and Acquisition.
Without the prior approval of 100% of the Issuer's Board of Directors, not
consolidate with or merge with or into any Person, or acquire directly or
indirectly all or substantially all of the capital stock, equity interests or
Property of any Person.
Section 4.13. Contingent Liabilities.
Without the prior approval of 100% of the Issuer's Board of Directors, not
assume, guarantee, endorse, contingently agree to purchase, become liable in
respect of any letter of credit, or otherwise become liable upon the obligation
of any Person, except liabilities arising from the endorsement of negotiable
instruments for deposit or collection, the posting of bonds to secure
performance to the extent necessary in connection with Issuer's Cable Business
and similar transactions in the ordinary course of business.
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Section 4.14. Distributions.
Not make any dividends, distributions or other shareholder expenditures
with respect to the Issuer Capital Stock or apply any of its Property to the
purchase, redemption or other retirement of, or set apart any sum for the
payment of, or make any other distribution by reduction of capital or otherwise
in respect of, any of the Issuer Capital Stock.
Section 4.15. Payments of Indebtedness.
Not make any payment in cash in respect of the Subordinated Indebtedness
except to the extent permitted by the Subordination Agreement (Junior).
Section 4.16. Investments, Loans.
Not at any time purchase or otherwise acquire, hold or invest in the
capital stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds or
credit to, or make any other investment, whether by way of capital contribution
or otherwise, in or with any Person, including, without limitation, any
Affiliate, except (i) investments in direct obligations of, or instruments
unconditionally guaranteed by, the United States of America or in certificates
of deposit issued by a Qualified Depository, (ii) investments in commercial or
finance paper which, at the time of investment, is rated "A" or better by
Moody's Investors Service, Inc., or Standard & Poor's Ratings Group, a Division
of McGraw-Hill, Inc., respectively, or at the equivalent rate by any of their
respective successors, (iii) any interests in any money market account
maintained, at the time of investment, with a Qualified Depository, the
investments of which, at the time of investment, are restricted to the types
specified in clause (i) above, (iv) loans to employees of Issuer in the
aggregate amount not to exceed $25,000 outstanding at any time, (v) capital
stock of presently existing Subsidiaries and (vi) investments in equity
interests of programmers made available to Issuer by such programmers as an
inducement to carry programming of such programmers, provided the aggregate cost
of all such investments does not exceed $100,000 outstanding at any time. All
investments permitted pursuant to clauses (i), (ii) and (iii) of this Section
4.16 shall have a maturity not exceeding one year.
Section 4.17. Fundamental Business Changes.
Not materially change the nature of its business or engage in any business
other than the Cable Business.
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Section 4.18. Sale or Transfer of Assets.
Without the prior approval of 100% of the Issuer's Board of Directors, not
sell, lease, assign, transfer or otherwise dispose of any Property (other than
in the ordinary course of business) except for (i) the sale or disposition of
(A) Property which is not material to or necessary for the continued operation
of its business and (B) obsolete or unusable items of equipment which promptly
are replaced with new items of equipment of like function and comparable value
to the unusable items of equipment when the same were new or not obsolete or
unusable, provided such replacement items of equipment shall become subject to
the Security Interests, (ii) Permitted Asset Sales and (iii) sales of Property
upon which the Agent (as defined in the Loan Agreement) has released its
Permitted Senior Indebtedness Liens.
Section 4.19. Acquisition of Additional Properties.
Without the prior approval of 100% of the Issuer's Board of Directors, not
acquire any additional Property except such Property as is necessary to or
useful in the operation of its business, provided such acquisitions shall be
subject to the conditions and limitations set forth in this Indenture.
Section 4.20. Issuance of Equity Interests.
Not issue or sell, permit to be issued or sold, or otherwise consent to
the transfer of, any additional capital stock or any interests convertible into
or exercisable for any such additional capital stock, except for the conversion
of the Class C Stock to Class A Stock.
Section 4.21. Transactions with Affiliates.
Without the prior approval of 100% of the Issuer's Board of Directors, not
sell, lease, assign, transfer or otherwise dispose of any Property to any
Affiliate of Issuer, lease Property, render or receive services or purchase
assets from any such Affiliate, or otherwise enter into any contractual
relationship with any Affiliate of Issuer, except that Issuer may (i) receive
management services from Scott Management under the terms of the Management
Agreement and may pay to Scott Management (A) Scott Management Fees provided
that the aggregate amount of all payments of Scott Management Fees with respect
to any month does not exceed 4.5% of the gross revenues of Issuer for such
month; except that any payment of Scott Management Fees with respect to December
of any year may exceed 4.5% of the gross revenues of Issuer for such month so
long as the aggregate amount of all payments of Scott Management Fees with
respect to any year does not exceed 4.5% of the gross revenues of
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Issuer for such year and (B) reasonable out-of-pocket expenses and (ii) engage
in such transactions with its Affiliates provided such transactions are in the
ordinary course of business of Issuer and are under terms no less favorable to
Issuer than could be obtained from an independent third party.
Section 4.22. Compliance with ERISA.
(a) Not engage in any Termination Event which would result in a
liability to Issuer or any ERISA Affiliate in excess of $100,000;
(b) Not cause the present value of all benefit liabilities under all
Pension Plans to exceed the current value of the assets of such Pension
Plans allocable to such benefit liabilities by more than $100,000;
(c) Not cause any accumulated funding deficiency in excess of
$100,000 (as defined in Section 302 of ERISA and Section 412 of the Code)
with respect to any Pension Plan, except to the extent waived;
(d) Not fail to make any contribution or payment to any
Multiemployer Plan which Issuer or any ERISA Affiliate may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto which results in or is likely to result in a liability
in excess of $100,000;
(e) Not engage, or permit any ERISA Affiliate to engage, in any
"prohibited transaction" as such term is defined in Section 406 of ERISA
or Section 4975 of the Code for which a civil penalty pursuant to Section
502(i) of ERISA or a tax pursuant to Section 4975 of the Code in excess of
$100,000 is imposed;
(f) Not establish any Employee Benefit Plan providing
post-retirement welfare benefits or establish or amend any Employee
Benefit Plan which establishment or amendment could result in liability to
Issuer or any ERISA affiliate or increase the obligation of Issuer or any
ERISA Affiliate to a Multiemployer Plan which liability or increase,
individually or together with all similar liabilities and increases, is
material to Issuer or any ERISA Affiliate; or
(g) Not fail, or permit any ERISA Affiliate to fail, to establish,
maintain and operate each Employee Benefit Plan of Issuer in compliance in
all material respects with ERISA, the Code and all other applicable laws
and regulations and interpretations thereof.
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ARTICLE V
DEFAULT AND REMEDIES
Section 5.1. Events of Default.
An "Event of Default" occurs if:
(a) Issuer defaults in the payment of interest on the Securities
when the same becomes due and payable and the default continues for a
period of 30 days;
(b) Issuer defaults in the payment of the principal of the
Securities when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(c) Issuer shall fail to observe or perform any covenant or
agreement (other than those referred to in subparagraph (a) above or (b)
or specifically addressed elsewhere in this Section 5.1) made by it in
this Indenture and such failure shall continue for a period of 30 days
after written notice of such failure is given by the Trustee;
(d) any representation or warranty made by or on behalf of Issuer in
or pursuant to any of the Indenture Instruments or in any instrument or
document furnished in compliance with the Indenture Instruments shall
prove to be false or misleading in any material respect on the date as of
which made;
(e) (i) Issuer at any time shall be in default (as principal or
guarantor or other surety) in the payment of any principal of or premium
or interest on any Indebtedness for Borrowed Money beyond the grace
period, if any, applicable thereto and the aggregate amount of such
payments then in default beyond such grace period shall exceed $100,000 or
(ii) any default shall occur in respect of any issue of Indebtedness for
Borrowed Money of Issuer outstanding in a principal amount of at least
$300,000, or in respect of any agreement or instrument relating to any
such issue of Indebtedness for Borrowed Money, and such default shall
continue beyond the grace period, if any, applicable thereto, and in each
case, such default shall continue uncured or unwaived
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for a period of 60 days after written notice thereof is given by the
Trustee or, if as a result of such default the related Indebtedness has
been accelerated;
(f) (A) Issuer shall (i) generally not be paying its debts as they
become due, (ii) file, or consent, by answer or otherwise, to the filing
against it of a petition for relief or reorganization or arrangement or
any other petition in bankruptcy or insolvency under the laws of any
jurisdiction, (iii) make an assignment for the benefit of creditors, (iv)
consent to the appointment of a custodian, receiver, trustee or other
officer with similar powers for the Issuer, or for any substantial part of
the Property of the Issuer or (v) be adjudicated insolvent;
(B) any Governmental Body of competent jurisdiction shall enter
an order appointing, without consent of Issuer, a custodian, receiver,
trustee or other officer with similar powers with respect to Issuer, or
with respect to any substantial part of the Property belonging to Issuer,
or if an order for relief shall be entered in any case or proceeding for
liquidation or reorganization or otherwise to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of Issuer or if any petition for
any such relief shall be filed against Issuer and such petition shall not
be dismissed or stayed within 60 days;
(g) there shall exist a final judgment or award against Issuer which
shall have been outstanding for a period of 30 days or more from the date
of the entry thereof and shall not have been discharged in full or stayed
pending appeal, if the aggregate amount of all such judgments and awards
exceeds $300,000;
(h) Issuer fails to comply with the terms of its articles of
incorporation or by-laws; or
(i) any material portion of the Collateral shall be seized or taken
by a Governmental Body or Person (including, but not limited to, the
Senior Creditors pursuant to the terms of the Loan Agreement), or Issuer
shall fail to maintain or cause to be maintained the Security Interests
and priority of the Indenture Instruments as against any Person, or the
title and rights of Issuer to any material portion of the Collateral shall
have become the subject matter of litigation which could reasonably be
expected to result in impairment or loss of the security provided by the
Indenture Instruments.
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Section 5.2. Acceleration.
Subject to the terms of the Subordination Agreement (Senior), if an Event
of Default (other than an Event of Default specified in Section 5.1(f)) occurs
and is continuing, Trustee may, by notice to Issuer or the Holders of at least
25% in aggregate principal amount of the Securities then outstanding may, by
written notice to Issuer and Trustee, and Trustee shall, upon the request of
such Holders, declare the aggregate principal amount of the Securities
outstanding, together with accrued but unpaid interest thereon to the date of
payment, to be due and payable and, upon any such declaration, the same shall
become and be due and payable. If an Event of Default specified in Section
5.1(f) occurs, all unpaid principal and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of Trustee or any Holder. Upon payment
of such principal amount, interest, and premium, if any, all of Issuer's
obligations under the Securities and this Indenture, other than obligations
under Section 6.7, shall terminate. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the non-payment of the principal and interest on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.4, (ii) to the extent the
payment of such interest is lawful, interest on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration, has been paid, and (iii) the rescission would not conflict with
any judgment or decree of a court of competent jurisdiction.
Section 5.3. Other Remedies.
If an Event of Default occurs and is continuing, Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities, the Security Instruments or this Indenture.
Trustee may maintain a proceeding under this Indenture, the Security
Instruments or the Securities even if it does not possess any of the Securities
or does not produce any of them in the proceeding. A delay or omission by
Trustee or any Holder 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 to the extent permitted by law.
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Section 5.4. Waiver of Past Defaults.
Subject to Sections 5.7 and 7.2, the Holders of at least a majority in
aggregate principal amount of the outstanding Securities by notice to Trustee
may on behalf of the Holders of all the Securities waive any past Default under
this Indenture, the Securities or any Security Instruments and its consequences,
except a Default in the payment of principal of or interest on any Security as
specified in clauses (a) and (b) of Section 5.1 or an Event of Default specified
in Section 5.1(f). When a Default or Event of Default is so waived, it shall be
deemed cured and shall cease to exist.
Section 5.5. Control by Majority.
The Holders of at least a majority in aggregate principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to Trustee or exercising any trust or power
conferred on it under this Indenture, the Securities or the Security
Instruments. Subject to Section 6.1, however, Trustee may refuse to follow any
direction (a) that conflicts with any law or this Indenture, (b) that Trustee
determines may be unduly prejudicial to the rights of another Holder, or (c)
that may involve Trustee in personal liability; provided that Trustee may take
any other action deemed proper by Trustee which is not inconsistent with such
direction.
Section 5.6. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture, the
Securities or the Security Instruments unless:
(1) the Holder gives written notice to Trustee of a continuing Event
of Default;
(2) the Holder or Holders of at least 25% in aggregate principal
amount of the outstanding Securities make a written request to Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to
Trustee indemnity satisfactory to Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, provision of
indemnity; and
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(5) during such 30-day period the Holder or Holders of at least 25%
in aggregate principal amount of the outstanding Securities do not give
Trustee a direction which, in the opinion of Trustee, is inconsistent with
the request.
The foregoing limitations shall not apply to a suit instituted by a Holder
for the enforcement of the payment of principal of, or interest on, any
Securities on or after the respective due dates set forth in such Securities.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holders.
Section 5.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
Section 5.8. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
clause (a) or (b) of Section 5.1 occurs and is continuing, Trustee may recover
judgment in its own name and as trustee of an express trust against Issuer for
the whole amount of 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 per annum borne by the Securities and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of Trustee, its
agents and counsel.
Section 5.9. Trustee May File Proofs of Claim.
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 Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings (including, without limitation, a case or proceeding under any
Bankruptcy Law) relating to Issuer or any other obligor upon the Securities, any
of their respective creditors or any of their respective property and shall be
entitled and empowered to collect and receive any monies or other property
payable or
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deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to Trustee and, in the event that Trustee shall consent to the making
of such payments directly to the Holders, to pay to Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of
Trustee, its agents and counsel, and any other amounts due Trustee under Section
6.7. Nothing herein contained shall be deemed to authorize Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.10. Priorities.
Subject to the Subordination Agreement (Senior), if Trustee collects any
money pursuant to this Article V, it shall pay out the money in the following
order:
First: to Trustee for amounts due to it under Section 6.7 and for any
amounts due under the Security Instruments;
Second: if the Holders are forced to proceed against Issuer directly
without Trustee, to the Holders for their collection costs;
Third: to the Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
Fourth: to Issuer.
Trustee, upon prior notice to Issuer, may fix a record date and payment
date for any payment to the Holders pursuant to this Section 5.10.
Section 5.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against 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 5.11 does not apply to
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a suit by Trustee, a suit by a Holder pursuant to Section 5.7, or a suit by a
Holder or Holders of more than 25% in aggregate principal amount of the
outstanding Securities.
ARTICLE VI
TRUSTEE
Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
Section 6.1. Duties of Trustee.
(a) Execute the Subordination Agreement (Senior) and the Subordination
Agreement (Junior).
(b) If a Default or an Event of Default has occurred and is continuing,
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and the Security Instruments and use the same degree of care and skill
in its exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) Except during the continuance of a Default or an Event of Default:
(1) Trustee need perform only those duties as are specifically set
forth in this Indenture and the Security Instruments and no covenants or
obligations shall be implied in this Indenture or the Security Instruments
that are adverse to Trustee.
(2) In the absence of bad faith on its part, 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 Trustee and conforming to the requirements of this Indenture or the
Security Instruments, as the case may be. However, Trustee shall examine
the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture or the relevant Security Instrument.
(d) 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 6.1.
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(2) Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that Trustee was
negligent in ascertaining the pertinent facts.
(3) Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Section 5.5.
(e) No provision of this Indenture or any Security Instrument shall
require Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or thereunder or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(f) Every provision of this Indenture and the Security Instruments that in
any way relates to Trustee is subject to paragraphs (a), (b), (c) and (d) of
this Section 6.1.
(g) Trustee shall not be liable for interest on any assets received by it
except as Trustee may agree with Issuer. Assets held in trust by Trustee need
not be segregated from other assets except to the extent required by law.
Section 6.2. Rights of Trustee.
Subject to Section 6.1 and the provisions of Section 315 of the TIA:
(a) Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper person. Trustee need not investigate
any fact or matter stated in the document.
(b) Before Trustee acts or refrains from acting, it may consult with
counsel and may require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Sections 12.4 and 12.5. Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.
(c) Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) Trustee shall not be liable for any action that it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers other than any liabilities arising out of its own negligence.
(e) Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
notice, request, direction, consent, order, bond, debenture, or other paper or
document, but Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(f) Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture or any Security Instrument at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
Section 6.3. Individual Rights of Trustee.
Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with Issuer, its Subsidiaries, or
their respective Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, Trustee must
comply with Sections 6.10 and 6.12.
Section 6.4. Trustee's Disclaimer.
Trustee makes no representation as to the validity or adequacy of this
Indenture, any Security Instrument or the Securities, it shall not be
accountable for Issuer's use of the proceeds from the Securities, and it shall
not be responsible for any statement in the Securities other than Trustee's
certificate of authentication. Trustee shall not be responsible for perfecting
or maintaining the perfection of any security interest granted to it under any
Security Instrument or for filing, refiling, recording or rerecording any
document, Mortgage, notice or instrument in any public office at any time or
times and shall not be responsible for seeing to the insurance on or the payment
of any taxes with respect to any property subject to any Security Instrument.
Section 6.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it is
known to Trustee, Trustee shall mail to each Holder notice of the uncured
Default or Event of Default within 30 days after such Default or Event of
Default occurs. Except in the case of a Default
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or an Event of Default in payment of principal of, premium, if any, or interest
on, any Security, Trustee may withhold the notice if and so long as its board of
directors, the executive committee of its board of directors or a committee of
its directors and/or Trust Officers in good faith determines that withholding
the notice is in the interest of the Holders.
Section 6.6. Reports By Trustee to Holders.
Within 60 days after each May 1st commencing with May 1, 1998, Trustee
shall, to the extent that any of the events described in TIA Section 313(a)
occurred within the previous twelve months, but not otherwise, mail to each
Holder a brief report dated as of such January 1st that complies with TIA
Section 313(a). Trustee also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to Issuer and filed with the SEC and each stock exchange, if any, on
which the Securities are listed.
Issuer shall notify Trustee if the Securities become listed on any stock
exchange.
Section 6.7. Compensation and Indemnity.
Issuer shall pay to Trustee from time to time reasonable compensation for
its services. Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. Issuer shall reimburse Trustee
upon request for all reasonable disbursements, expenses and advances incurred or
made by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of Trustee's agents and counsel.
Issuer shall indemnify Trustee for, and hold it harmless against, any loss
or liability incurred by it except for such actions to the extent caused by any
negligence or bad faith on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder and under the
Security Instruments. Trustee shall notify Issuer promptly of any claim asserted
against Trustee for which it may seek indemnity. Issuer shall defend the claim
and Trustee shall cooperate in the defense. Trustee may have separate counsel
and Issuer shall pay the reasonable fees and expenses of such counsel; provided
that Issuer will not be required to pay such fees and expenses if it assumes
Trustee's defense and there is no conflict of interest between Issuer and
Trustee in connection with such defense as reasonably determined by Trustee.
Issuer need not pay for any settlement made without its written consent. Issuer
need not reimburse any expense or indemnify against any loss or liability to the
extent incurred by Trustee through its negligence, bad faith or willful
misconduct.
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To secure Issuer's payment obligations in this Section 6.7, Trustee shall
have a lien prior to the Securities on all assets held or collected by Trustee,
in its capacity as Trustee, except assets held in trust to pay principal of,
premium, if any, or interest on particular Securities.
When Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.1(f) occurs or in connection with any case or proceeding
under any Bankruptcy Law, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 6.8. Replacement of Trustee.
Trustee may resign by so notifying Issuer. The Holders of at least a
majority in aggregate principal amount of the outstanding Securities may remove
Trustee by so notifying Issuer and Trustee and may appoint a successor Trustee
with Issuer's consent. Issuer may remove Trustee if:
(1) Trustee fails to comply with Section 6.10;
(2) Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to Trustee under any Bankruptcy Law;
(3) a custodian, receiver or other public officer takes charge of
Trustee or its property; or
(4) Trustee becomes incapable of acting.
If Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, Issuer shall notify each Holder of such event and shall
promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in aggregate principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by Issuer.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to Issuer. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided in Section 6.7, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of Trustee under this Indenture and the
Security Instruments and Issuer shall take such action as shall be necessary so
that all
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Collateral (including all Trust Moneys and other property in the Collateral
Account) shall continue to be subject to the Lien of the Security Instruments in
favor of Trustee (or, in the case of property or assets subject to a Mortgage,
Trustee or another trustee under such Mortgage) for the benefit of the Holders
of the Securities. A successor Trustee shall mail notice of its succession to
each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Issuer or the
Holders of at least 10% in aggregate principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If Trustee fails to comply with Section 6.10, any Holder may petition any
court of competent jurisdiction for the removal of Trustee and the appointment
of a successor Trustee.
Notwithstanding replacement of Trustee pursuant to this Section 6.8,
Issuer's obligations under Section 6.7 shall continue for the benefit of the
retiring Trustee.
Section 6.9. Successor Trustee by Merger, Etc.
If Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
resulting, surviving or transferee corporation without any further act shall, if
such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.
Section 6.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1) and 310(a)(5). Trustee shall have a combined capital
and surplus of at least $100,000,000 as set forth in its most recent published
annual report of condition. Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of Issuer are
outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 6.11. Co-Trustee.
(a) If at any time or times it shall be necessary or prudent in
order to conform to any law of any jurisdiction in which any of the Collateral
shall be located, or Trustee shall
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be advised by counsel satisfactory to it that it is necessary or prudent in the
interest of the Holders, or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities shall in writing so request Trustee and
Issuer, or Trustee shall deem it desirable for its own protection in the
performance of its duties hereunder, Trustee and Issuer shall execute and
deliver all instruments and agreements necessary or proper to constitute another
bank or trust company, or one or more persons approved by Trustee and Issuer,
either to act as co-trustee or co-trustees (each a "co-trustee") of all or any
of the Collateral, jointly with Trustee, or to act as separate trustee or
trustees of any such property. If Issuer shall not have joined in the execution
of such instruments and agreements within 10 days after Issuer receives a
written request from Trustee to do so, or if an Event of Default has occurred
and is continuing, Trustee may act under the foregoing provisions of this
Section 6.11 without the concurrence of Issuer. Issuer hereby appoints Trustee
as its agent and attorney to act for it under the foregoing provisions of this
Section 6.11 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than any
successor Trustee appointed pursuant to Section 6.08, shall, to the extent
permitted by law, be appointed and act and be such, subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon Trustee hereunder shall be conferred or imposed and exercised or
performed by Trustee and such separate trustee or separate trustees or
co-trustee or co-trustees, jointly, as shall be provided in the instrument
appointing such separate trustee or separate trustees or co-trustee or
co-trustees, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed singly by such separate trustee or separate trustees or
co-trustee or co-trustees, but solely at the direction of Trustee;
(ii) no trustee or co-trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee or co-trustee
hereunder; and
(iii) Issuer and Trustee, at any time by an instrument in writing
executed by them jointly, may accept the resignation of or remove any such
separate trustee or co-trustee and, in that case by an instrument in
writing executed by them jointly, may appoint a successor to such separate
trustee or co-trustee, as the case may be, anything contained herein to
the contrary notwithstanding. If Issuer shall not have joined in the
execution of any such instrument within 10 days after Issuer receives a
written request from Trustee to do so, or if an Event of Default has
occurred and is continuing,
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Trustee shall have the power to accept the resignation of or remove any
such separate trustee or co-trustee and to appoint a successor without the
concurrence of Issuer, Issuer hereby appointing Trustee its agent and
attorney to act for it in such connection in such contingency. If Trustee
shall have appointed a separate trustee or co-trustee as above provided,
Trustee may at any time, by an instrument in writing, accept the
resignation of or remove any such separate trustee or co-trustee and the
successor to any such separate trustee or co-trustee shall be appointed by
Issuer and Trustee, or by Trustee alone pursuant to this Section 6.11.
Section 6.12. Preferential Collection of Claims Against Issuer.
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 7.1. Without Consent of Holders.
Issuer, when authorized by a Board Resolution, and Trustee, together, may
amend or supplement this Indenture, the Securities or the Security Instruments
without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(2) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, as from time to time
amended, or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Internal Revenue Code of 1986, as
from time to time amended;
(3) to make any other change that does not adversely affect the
rights of any Holders;
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(4) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA;
(5) to give effect to the release of any Released Interests or any
other release of Collateral released in accordance with the terms of this
Indenture or the relevant Security Instrument;
(6) to evidence or effect the pledge of additional or substitute
assets or property as Collateral; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities and to make such additions or changes as shall be necessary or
appropriate to provide for or facilitate the administration of the trusts
hereunder by more than one trustee pursuant to the requirements of Section
6.11 hereof;
provided that Issuer has delivered to Trustee an Opinion of Counsel stating that
such amendment or supplement complies with the provisions of this Section 7.1.
Section 7.2. With Consent of Holders.
Subject to Section 5.7, Issuer, when authorized by a Board Resolution, and
Trustee, together, with the written consent of the Holder or Holders of at least
a majority in aggregate principal amount of the outstanding Securities, may
amend or supplement this Indenture, the Securities or the Security Instruments,
without notice to any other Holders. Subject to Section 5.7, the Holder or
Holders of at least a majority in aggregate principal amount of the outstanding
Securities may waive future compliance by Issuer with any provision of this
Indenture, the Securities or the Security Instruments without notice to any
other Holder. Without the consent of each Holder affected, however, no
amendment, supplement or waiver, including a waiver pursuant to Section 5.4,
may:
(1) change the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Security Instruments;
(2) reduce the rate or extend the time for payment of interest on
any Security;
(3) reduce the principal amount of any Security;
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(4) change the Maturity Date of any Security, or alter the
redemption provisions contained in Article III in a manner adverse to any
Holder;
(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders or the rights of Holders to
recover the principal of, interest on, or redemption payment with respect
to, any Security;
(6) make any changes in Section 5.4, 5.7 or this third sentence of
this Section 7.2;
(7) make the principal of, or the interest on any Security payable
with anything or in any manner other than as provided for in this
Indenture and the Securities as in effect on the date hereof; or
(8) directly or indirectly release or terminate the Liens created by
this Indenture and the Security Instruments as to all or substantially all
of the Collateral, except as expressly permitted under this Indenture and
the Security Instruments.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, Issuer shall mail to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under this Article
VII, Issuer may, but shall not be obligated to, offer to any Holder who consents
to such amendment, supplement or waiver, or to all Holders, consideration for
such Holder's consent to such amendment, supplement or waiver.
Section 7.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
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Section 7.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of his Security by notice to Trustee or Issuer
received before the date on which Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver. Notwithstanding the above, nothing in this paragraph shall
impair the right of any holder under Section 316(b) of the TIA.
Issuer shall fix a record date for the purpose of determining the Holders
entitled to consent to any amendment, supplement or waiver, which record date
shall be at least 30 days prior to the first solicitation of such consent. When
a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to revoke any consent previously given, whether or not such persons
continue to be Holders after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (1) through
(8) of Section 7.2, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security; provided that any such waiver shall not impair
or affect the right of any Holder to receive payment of principal of and
interest on a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
Section 7.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
Trustee may require the Holder of the Security to deliver it to Trustee. Trustee
may place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if Issuer or Trustee so determines,
Issuer in exchange for the Security shall issue and Trustee shall authenticate a
new Security that reflects the changed terms.
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Section 7.6. Trustee To Sign Amendments, Etc.
Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article VII; provided that Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
Trustee's own rights, duties or immunities under this Indenture. Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article VII is authorized or permitted by this
Indenture.
ARTICLE VIII
COLLATERAL AND SECURITY
Section 8.1. Collateral.
In order to secure the due and punctual payment of the principal of and
interest on the Securities when and as the same shall be due and payable,
whether on an Interest Payment Date, at maturity or by acceleration, redemption
or otherwise, and interest on the overdue principal of and (to the extent
permitted by law) interest, if any, on the Securities and the performance of all
other obligations of Issuer to the Holders or Trustee under this Indenture, the
Securities and any other documents contemplated hereby, as the case may be,
Issuer and Trustee have simultaneously with the execution of this Indenture
entered into the Security Instruments. Trustee and Issuer each hereby agree that
Trustee holds its interest in the Collateral in trust for the benefit of the
Holders pursuant to the terms of the Security Instruments. Notwithstanding
anything contained herein or in the Indenture Instruments to the contrary, the
Issuer shall be permitted to establish reserves and escrows pursuant to the Plan
of Reorganization and the Collateral shall not include any funds escrowed
thereby until released to Issuer.
Section 8.2. Possession and Use of Collateral.
Subject to and in accordance with the provisions of the Subordination
Agreement (Senior), this Indenture and the Security Instruments, so long as no
Event of Default shall have occurred and be continuing, Issuer shall have the
right to remain in possession and retain exclusive control of and to exercise
all rights with respect to the Collateral, to operate, manage, develop, lease,
use, consume and enjoy the Collateral, to alter or repair any Collateral
consisting of machinery or equipment so long as such alterations and repairs do
not diminish the value thereof or impair the Lien of the Security Instruments
thereon and to
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collect, receive, use, invest and dispose of the reversions, remainders,
interest, rents, lease payments, issues, profits, revenues, proceeds and other
income thereof.
Section 8.3. Release of Collateral.
(a) Trustee shall not at any time release Collateral from the Liens
created by this Indenture and the Security Instruments unless such release is
(i) in accordance with the provisions of this Indenture and the Security
Instruments and the terms of the Subordination Agreement (Senior) or (ii) of
Collateral (x) which is the subject of a Permitted Asset Sale or a sale
otherwise permitted by the terms of the Loan Agreement or (y) upon which the
Agent (as defined in the Loan Agreement) has released its Permitted Senior
Indebtedness Liens.
(b) The release of any Collateral from the Lien of the Security
Instruments shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Security Instruments. To the extent
applicable, Issuer shall cause TIA Section 314(d) relating to the release of
property from the Lien of the Security Instruments and relating to the
substitution therefor of any property to be subjected to the Lien of the
Security Instruments to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of Issuer, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent person, which person shall be an independent engineer, appraiser or
other expert selected or approved by Trustee in the exercise of reasonable care.
Section 8.4. Specified Releases of Collateral.
(a) Satisfaction and Discharge. Issuer shall be entitled to obtain a full
release of all of the Collateral from the Liens of this Indenture and of the
Security Instruments upon compliance with the conditions precedent set forth in
Section 11.1 for satisfaction and discharge of this Indenture. Upon delivery by
Issuer to Trustee of an Officers' Certificate and an Opinion of Counsel, each to
the effect that such conditions precedent have been complied with, together with
such documentation, if any, as may be required by the TIA (including, without
limitation, Section 314(d) of the TIA) prior to the release of such Collateral
has been provided to the Trustee, Trustee shall forthwith take all necessary
action (at the request of and the expense of Issuer) to release and reconvey to
Issuer without recourse all of the Collateral, and shall deliver such Collateral
in its possession to Issuer including, without limitation, the execution and
delivery of releases and satisfactions wherever required.
(b) Dispositions of Collateral Permitted by Section 4.18. Issuer shall be
entitled to obtain a release of, and Trustee shall release, items of Collateral
(the "Released Interests")
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subject to a Permitted Asset Sale upon compliance with the conditions precedent
that Issuer shall have delivered to Trustee the following:
(i) Company Order. A written request by the Issuer requesting
release of Released Interests, such request (A) specifically describing
the proposed Released Interests, (B) stating that the consideration to be
received is at least equal to the Fair Market Value of the Released
Interests on the date the agreement of sale was entered into ("Valuation
Date"), (C) stating that either (i) the release of such Released Interests
will not materially impair the value of the remaining Collateral or
materially interfere with or impede Trustee's ability to realize the value
of the remaining Collateral and will not materially impair the maintenance
and operation of the remaining Collateral or (ii) the sale has been
approved by 100% of the Issuer's Board of Directors, (D) confirming the
sale of, or an agreement to sell, such Released Interests in a bona fide
sale to a person that is not an Affiliate of Issuer, or in the event that
such sale is to a person that is such an Affiliate, that such sale has
been approved by 100% of the Issuer's Board of Directors, (E) certifying
that such Permitted Asset Sale complies with the terms and conditions of
this Indenture and (F) in the event that there is to be a substitution of
property for the Collateral subject to the Permitted Asset Sale,
specifying the property intended to be substituted for the Collateral to
be disposed of;
(ii) Officers' Certificate. An Officers' Certificate of Issuer
certifying that (A) such sale covers only the Released Interests, (B) all
proceeds from the sale of any of the Released Interests will be deposited
and all Net Sale Proceeds from the sale of any of the Released Interests
will be applied pursuant to Section 4.9, and (C) all conditions precedent
to such release have been complied with; and
(iii) Compliance with TIA and Section 8.1. All documentation
required by the TIA (including, without limitation, Section 314(d) of the
TIA), if any, prior to the release of Collateral by Trustee, and, in the
event there is to be a substitution of property for the Collateral subject
to the Permitted Asset Sale, all documentation required by the TIA to
effect the substitution of such new Collateral and to subject such new
Collateral to the Lien of the relevant Security Instruments, and all
documents required by Section 8.1 hereof.
(iv) Opinion of Counsel. An Opinion of Counsel stating that the
documents that have been or are therewith delivered to Trustee in
connection with such release conform to the requirements of this Indenture
and that all conditions precedent herein provided for relating to such
release have been complied with.
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Upon compliance by Issuer with the conditions precedent set forth above,
Trustee shall cause to be released and reconveyed to Issuer the Released
Interest without recourse by executing a release in the form provided by Issuer.
(c) Eminent Domain, Expropriation and Other Governmental Takings. Issuer
shall be entitled to obtain a release of, and Trustee shall release, items of
Collateral taken by eminent domain or expropriation or sold pursuant to the
exercise by the United States of America or any State, municipality, province or
other governmental authority thereof of any right which it may then have to
purchase, or to designate a purchaser or to order a sale of, all or any part of
the Collateral, upon compliance with the conditions precedent that Issuer shall
have delivered to Trustee the following:
(i) Officers' Certificate. An Officers' Certificate of Issuer
certifying that (A) such Collateral has been taken by eminent domain or
expropriation and the amount of the award therefor, or that such property
has been sold pursuant to a right vested in the United States of America,
or a State, municipality, province or other governmental authority thereof
to purchase, or to designate a purchaser, or order a sale of such
Collateral and the amount of the proceeds of such sale, and (B) all
conditions precedent to such release have been complied with;
(ii) Opinion of Counsel. An Opinion of Counsel to the effect that
(A) such property has been lawfully taken by exercise of the right of
eminent domain, or has been sold pursuant to the exercise of a right
vested in the United States of America or a State, municipality, province
or other governmental authority to purchase, or to designate a purchaser
or order a sale of, such property, (B) in the case of any such taking by
eminent domain, the award for such property has become final or an appeal
therefrom is not advisable in the interests of Issuer or the Holders, (C)
the documents that have been or are therewith delivered to Trustee in
connection with such release conform to the requirements of this
Indenture, and (D) all conditions precedent herein provided relating to
such release have been complied with;
(iii) Eminent Domain or Expropriation Award. Subject to the
Subordination Agreement (Senior), cash equal to the amount of the award
for such property or the Net Sale Proceeds shall be deposited with the
Trustee and held subject to the disposition thereof pursuant to the
Subordination Agreement (Senior); and
(iv) Compliance with TIA. All documentation required by the TIA
(including, without limitation, ss. 314(d) of the TIA), if any, prior to
the release of Collateral by Trustee.
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Upon compliance by Issuer with the conditions precedent set forth above,
Trustee shall cause to be released and reconveyed to Issuer without recourse the
aforementioned items of Collateral by executing a release in the form provided
by Issuer.
Section 8.5. Disposition of Collateral Without Release.
Notwithstanding the provisions of Section 8.4, so long as no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, Issuer may, without any prior release or consent by Trustee, conduct
ordinary course activities in respect of the Collateral which do not
individually or in the aggregate adversely affect the value of the Collateral,
including selling or otherwise disposing of, in any single transaction or series
of related transactions, any property subject to the Lien of this Indenture or
the Security Instruments which has become worn out or obsolete and which either
has an aggregate Fair Market Value of $100,000 per year or less or which is
replaced by property of substantially equivalent or greater value which becomes
subject to the Lien of the Security Instruments as after-acquired property;
abandoning, terminating, cancelling, releasing or making alterations in or
substitutions of any leases or contracts subject to the Lien of this Indenture
or any of the Security Instruments; surrendering or modifying any franchise,
license or permit subject to the Lien of this Indenture or any of the Security
Instruments which it may own or under which it may be operating; altering,
repairing, replacing, changing the location or position of and adding to its
structures, machinery, systems, equipment, fixtures, and appurtenances,
provided, however that no change in the location of any such Collateral subject
to the Lien of any of the Security Instruments shall be made which (1) removes
such property into a jurisdiction in which any instrument required by law to
preserve the Lien of any of the Security Instruments on such property, including
all necessary financing statements and continuation statements, has not been
recorded, registered or filed in the manner required by law to preserve the Lien
of and security interest in any of the Security Instruments on such property,
(2) does not comply with the terms of this Indenture and the Security
Instruments or (3) otherwise impairs the Lien of the Security Instruments;
demolishing, dismantling, tearing down or scrapping any Collateral or abandoning
any thereof if, in the good faith opinion of the Board of Directors of the
Company (as evidenced by a Board Resolution delivered to the Trustee if it
involves Collateral having a Fair Market Value in excess of $100,000) such
demolition, dismantling, tearing down, scrapping or abandonment is in the best
interests of the Company, will not interfere with or impede Trustee's ability to
realize the value of the remaining Collateral and will not impair the
maintenance and operation of the remaining Collateral, and the Fair Market Value
and utility of the Collateral as an entirety, and the security for the
Securities, will not thereby be otherwise impaired; granting a nonexclusive
license of any intellectual property; and abandoning intellectual property which
has become obsolete and not used in the business.
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Section 8.6. Purchaser Protected.
No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of Trustee to
execute the release or to inquire as to the existence of any conditions herein
prescribed for the exercise of such authority.
Section 8.7. Authorization of Actions To Be Taken by Trustee Under the Security
Documents.
Subject to the provisions of the Security Instruments and the
Subordination Agreement (Senior), (a) Trustee may, in its sole discretion and
without the consent of the Holders, take all actions it deems necessary or
appropriate in order to (i) enforce any of the terms of the Security Instruments
and (ii) collect and receive any and all amounts payable in respect of the
obligations of Issuer hereunder or thereunder and (b) Trustee shall have power
to institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any act that may be unlawful or
in violation of the Security Instruments or this Indenture, and such suits and
proceedings as Trustee may deem expedient to preserve or protect its interests
and the interests of the Holders in the Collateral (including the 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 security
interest thereunder or be prejudicial to the interests of the Holders or of
Trustee). Trustee is hereby expressly authorized to execute, deliver and perform
its obligations under the Security Instruments. Except during the continuance of
an Event of Default, Trustee shall not be required to take any action under this
indenture or the Security Instruments that involves the exercise by it of
discretion. Trustee may, however, take any such action upon the basis of, at the
election of Trustee, either an Officers' Certificate or an Opinion of Counsel,
or both, of Issuer stating the nature of the proposed action and that any such
action is appropriate, necessary or advisable under the circumstances, complies
with the Indenture and the Security Instruments and does not adversely affect
the interests of the Holders; provided that the foregoing shall not limit the
ability of Trustee to take action at its discretion in the absence of such an
Officers' Certificate or Opinion of Counsel. Except during the continuance of an
Event of Default, Trustee may refrain from taking any such action pending
receipt of such Officers' Certificate and/or Opinion of Counsel, if so requested
by it, and shall incur no liability to any person for failure to take any such
action pending receipt thereof. Trustee shall be fully protected in acting on
the basis of any such Officers' Certificate and/or Opinion of Counsel and shall
incur no liability to any person arising out of any action taken on the basis
thereof.
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Section 8.8. Authorization of Receipt of Funds by Trustee Under the Security
Documents.
Trustee is authorized to receive any funds for the benefit of Holders
distributed under the Security Instruments and, subject to the terms of the
Subordination Agreement (Senior), to apply such funds as provided in this
Indenture and the Security Instruments, and to make further distributions of
such funds to the Holders in accordance with the other provisions of this
Indenture.
ARTICLE IX
MEETINGS OF SECURITYHOLDERS
Section 9.1. Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article IX for any of the following purposes:
(a) to give any notice to Issuer or to Trustee, or to give any directions
to Trustee, or to waive or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article V;
(b) to remove Trustee or appoint a successor Trustee pursuant to the
provisions of Article VI;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 7.2; or
(d) to take any other action (i) authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities under
any other provision of this Indenture, or authorized or permitted by law or (ii)
which Trustee deems necessary or appropriate in connection with the
administration of this Indenture.
Section 9.2. Manner of Calling Meetings.
Trustee may at any time call a meeting of Holders to take any action
specified in Section 9.1, to be held at such time and at such place in New York,
New York or elsewhere
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as Trustee shall determine. Notice of every meeting of Holders, setting forth
the time and place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed by Trustee, first-class postage
prepaid, to Issuer and to the Holders at their last addresses as they shall
appear on the registration books of the Registrar not less than 10 nor more than
60 days prior to the date fixed for a meeting.
Any meeting of Holders shall be valid without notice if the Holders of all
Securities then outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by the Holders of all Securities outstanding,
and if Issuer, any Subsidiary and Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 9.3. Call of Meetings by Issuer or Holders.
In case at any time Issuer, pursuant to a Board Resolution, or the Holders
of not less than 10% in aggregate principal amount of the Securities then
outstanding shall have requested Trustee to call a meeting of Holders to take
any action specified in Section 9.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and Trustee
shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then Issuer or the Holders in the amount above specified may
determine the time and place in New York, New York or elsewhere for such meeting
and may call such meeting for the purpose of taking such action, by mailing or
causing to be mailed notice thereof as provided in Section 9.2, or by causing
notice thereof to be published at least once in each of two successive calendar
weeks (on any Business Day during such week) in the Wall Street Journal
(national edition) or such other newspaper or newspapers printed in the English
language, customarily published at least five days a week of a general
circulation in New York, New York, the first such publication to be not less
than 10 nor more than 60 days prior to the date fixed for the meeting.
Section 9.4. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders, a person shall (a) be a
registered Holder of one or more Securities, or (b) be a person appointed by an
instrument in writing as proxy for the registered Holder or Holders of
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of Trustee and its counsel and any
representatives of Issuer and its counsel.
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Section 9.5. Regulations May Be Made by Trustee; Conduct of the Meeting; Voting
Rights; Adjournment.
Notwithstanding any other provision of this Indenture, Trustee may make
such reasonable regulations as it may deem advisable for any action by or any
meeting of Holders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix a
record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by Issuer or by
Holders as provided in Section 9.3, in which case Issuer or the Holders calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in aggregate principal amount of
the Securities represented at the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Securities challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman may adjourn any such meeting if he
is unable to determine whether any Holder or proxy shall be entitled to vote at
such meeting. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 9.2 or Section 9.3 may
be adjourned from time to time by vote of the Holders of a majority in aggregate
principal amount of the Securities represented at the meeting and entitled to
vote, and the meeting may be held as so adjourned without further notice.
Section 9.6. Voting at the Meeting and Record To Be Kept.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders of
Securities or of their representatives by proxy and the principal amount of the
Securities voted by the ballot. The
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permanent chairman of the meeting shall appoint two inspectors of votes, who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to such record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts, setting forth a copy of the
notice of the meeting and showing that such notice was mailed as provided in
Section 9.2 or published as provided in Section 9.3. The record shall be signed
and verified by the affidavits of the permanent chairman and the secretary of
the meeting and one of the duplicates shall be delivered to Issuer and the other
to Trustee to be preserved by Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.7. Exercise of Rights of Trustee or Holders May Not Be Hindered or
Delayed by Call of Meeting.
Nothing contained in this Article IX shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to
Trustee or to the Holders under any of the provisions of this Indenture or of
the Securities.
ARTICLE X
SUBORDINATION
Section 10.1. Securities Subordinated to Senior Indebtedness.
Anything herein to the contrary notwithstanding, Issuer, for itself and
its successors, and each Holder, by accepting a Security, agrees, that the
payment of the principal of and interest on and premiums, penalties, fees and
other liabilities (including, without limitation, liabilities in respect of any
indemnity, reimbursement, compensation or contribution obligations, any breach
of representation or warranty, or any rights of redemption or rescission under
this Indenture or by law or otherwise) with respect to the Securities is
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subordinated, to the extent and in the manner provided in the Subordination
Agreement (Senior).
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge of the Indenture.
This Indenture will be discharged and will cease to be of further effect
as to all outstanding Securities when:
(a) all Securities theretofore authenticated and delivered (except lost,
stolen or destroyed Securities which have been replaced or paid and Securities
for whose payment money has theretofore been deposited in trust and thereafter
repaid to Issuer) have been delivered to Trustee for cancellation; or
(b) (1) all Securities not theretofore delivered to Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise and Issuer has irrevocably deposited or caused to be
deposited with Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on the Securities not
theretofore delivered to Trustee for cancellation for principal, premium, if
any, and accrued interest to the date of maturity or redemption;
(2) Issuer has paid all sums payable by it under this Indenture; and
(3) Issuer has delivered irrevocable instructions to Trustee to
apply the deposited money toward the payment of the Securities at maturity
or the redemption date, as the case may be.
Section 11.2. Conditions to Satisfaction and Discharge of the Indenture.
Issuer shall deliver an Officers' Certificate and an Opinion of Counsel to
Trustee stating that all conditions precedent to satisfaction and discharge have
been complied with.
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ARTICLE XII
MISCELLANEOUS
Section 12.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of Section 3.18(c) of the TIA, the imposed
duties shall control.
Section 12.2. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if to Issuer:
Scott Cable Communications, Inc.
Four Landmark Square, Suite 302
Stamford, Connecticut 06901
Attention: Bruce A. Armstrong
Chief Executive Officer
Telecopy No.: (203) 325-3110
Copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Attention: Stanley E. Bloch
Telecopy No.: (212) 702-5941
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INDENTURE
(15% Senior Subordinated)
if to Trustee:
Fleet National Bank
Corporate Trust Department
One Federal Street
Boston, Massachusetts 02110
Attention: Robert L. Bice
Telecopier No.: (617) 346-5501
Each of Issuer and Trustee, by written notice to each other such person,
may designate additional or different addresses for notices to such person. Any
notice or communication to Issuer and Trustee shall be deemed to have been given
or made as of the date so delivered if personally delivered; the next business
day, if sent via a national known overnight delivery service; when receipt is
acknowledged, if telecopied; and upon receipt after mailing if sent by
registered or certified mail, postage prepaid.
Any notice or communication mailed to a Holder shall be mailed to him by
first class mail or other equivalent means at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Section 12.3. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture, the Security Instruments or
the Securities. Issuer, Trustee, the Registrar and any other person shall have
the protection of TIA Section 312(c).
Section 12.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by Issuer to Trustee to take any action
under this Indenture, Issuer shall furnish to Trustee:
(a) an Officers' Certificate 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
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(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 12.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 8.4, 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, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
Section 12.6. Rules by Trustee, Paying Agent, Registrar.
Trustee may make reasonable rules for action by or at a meeting of
Holders. Paying Agent or Registrar may make reasonable rules for its functions.
Section 12.7. Governing Law.
THIS INDENTURE AND THE SECURITIES 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. 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.
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Section 12.8. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of Issuer or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 12.9. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
Issuer shall not have any liability for any obligations of Issuer under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Section 12.10. Successors.
All agreements of Issuer in this Indenture, the Security Instruments and
the Securities shall bind their respective successors. All agreements of Trustee
in this Indenture shall bind its successor.
Section 12.11. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together shall represent the same
agreement.
Section 12.12. Severability.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 12.13. Actions by Trustee.
Notwithstanding anything contained herein or in any Security Instrument to
the contrary, Trustee shall have no obligation to foreclosure of any lien or to
take any similar remedial undertaking with respect to any real property that
comprises the Collateral unless and until Trustee shall be satisfied, in its
sole discretion, with the indemnities provided herein
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and/or any Security Instrument with respect to any and/or all liabilities
Trustee may incur with respect to taking any such action.
Section 12.14. Notes Issued In Accordance With Plan.
The Notes are the New Restructured Second Secured PIK Notes referred to in
the Debtors' Second Amended Disclosure Statement and Second Amended Joint Plan
of Reorganization dated October 31, 1996 and filed by the Issuer with the United
States Bankruptcy Court for the District of Delaware, and the Notes are issued
in accordance therewith.
Section 12.15. Deposit Agreement.
Upon issuance, the Notes are intended to be held by Fleet National Bank,
as Depositary pursuant to the Deposit Agreement of even date herewith by and
among the Issuer and the Depositary. Reference is hereby made to such agreement
for the terms and conditions of such holdings and the rights and remedies of the
parties thereto in connection therewith.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first written above.
SCOTT CABLE COMMUNICATIONS, INC.
By: /s/ Bruce A. Armstrong
------------------------------------
Name: Bruce A. Armstrong
Title: President
FLEET NATIONAL BANK
as Trustee
By: /s/ Robert L. Bice
------------------------------------
Name: Robert L. Bice
Title: Vice President
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(15% Senior Subordinated)
EXHIBIT A
The indebtedness evidenced hereby is subordinate in the manner and to the extent
set forth in that certain Subordination Agreement (the "Subordination Agreement
(Senior)") dated as of December 18, 1996 Scott Cable Communications, Inc.
("Issuer"), Fleet National Bank, as Trustee under the 15% Senior Subordinated
Pay-in-Kind Notes Indenture, Fleet National Bank, as Trustee under the 16%
Junior Subordinated Pay-in-Kind Note Indenture, and FINOVA Capital Corporation
("FINOVA"), to the indebtedness (including interest) owed by Issuer to the
holders of all of the notes issued pursuant to that certain Loan Agreement dated
as of December 18, 1996 between Issuer and FINOVA, as such Loan Agreement has
been and hereafter may be amended, modified, supplemented or restated from time
to time; and each holder hereof, by its acceptance hereof, shall be bound by the
provisions of the Subordination Agreement (Senior).
SCOTT CABLE COMMUNICATIONS, INC.
15% Senior Subordinated Pay-in-Kind Notes
due March 18, 2002
No. $
Scott Cable Communications, Inc., a Texas corporation ("Issuer," which term
includes any successor entity), for value received promises to pay to
_____________________ or registered assigns, the principal sum of dollars, on
March 18, 2002.
Interest payment dates: June 18 and December 18 commencing June 18, 1997.
Record dates: May 18 and November 18.
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.
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INDENTURE
(15% Senior Subordinated)
IN WITNESS WHEREOF, Issuer has caused this Security to be signed manually
or by facsimile by its duly authorized officers.
Dated: December 18, 1996
SCOTT CABLE COMMUNICATIONS, INC.
By: ____________________________________
Name: Bruce A. Armstrong
Title: President
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INDENTURE
(15% Senior Subordinated)
This is one of the Securities described in the within-mentioned Indenture.
Dated: December 18, 1996
FLEET NATIONAL BANK
as Trustee
_________________________________________
By:
Title:
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INDENTURE
(15% Senior Subordinated)
SCOTT CABLE COMMUNICATIONS, INC.
15% Senior Subordinated Pay-in-Kind Debenture
due March 18, 2002
1. Interest.
Scott Cable Communications, Inc., a Texas corporation ("Issuer"), promises
to pay interest on the principal amount of this Security at the rate per annum
shown above. Issuer shall issue additional Securities ("Secondary Securities")
in payment of any and all of the interest due on any Interest Payment Date or,
at the option of the Issuer, such interest may be made in cash. Each issuance of
Secondary Securities for the payment of interest on the Securities shall be made
pro rata with respect to the outstanding Securities. Any such Secondary
Securities shall be governed by the Indenture and shall be subject to the same
terms (including the maturity date and the rate of interest from time to time
payable thereon) as this Security (except, as the case may be, with respect to
the title, issuance date and aggregate principal amount). The term Securities
shall include the Secondary Securities that may be issued under the Indenture.
Issuer will pay interest semi-annually in arrears on June 18 and December
18 of each year (the "Interest Payment Date"), commencing June 18, 1997.
Interest on this Security will accrue from the date of issuance or from the most
recent date to which interest has been paid. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Issuer shall pay interest on overdue principal and interest on overdue
installments of interest, to the extent lawful, at the rate per annum borne by
the Securities.
2. Method of Payment.
Issuer shall pay interest on the Securities to the persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Securities are cancelled on
registration of transfer or registration of exchange after such Record Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Issuer shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts ("U.S. Legal Tender") (or, pursuant to Paragraph 1 hereof, in Secondary
Securities). However, Issuer may pay principal and interest by its check payable
in such U.S. Legal Tender or by wire transfer of federal funds (or, pursuant to
Paragraph 1 hereof, in Secondary Securities). Issuer may
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INDENTURE
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deliver any such interest payment to Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, FLEET NATIONAL BANK (the "Trustee"), will act as Paying Agent
and Registrar. Issuer may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. Issuer or any Subsidiary may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
Issuer issued the Securities under an Indenture, dated as of December 18,
1996 (the "Indenture"), between Issuer and Trustee. This Security is one of a
duly authorized issue of Securities of Issuer designated as its 15% Senior
Subordinated Pay-in-Kind Notes due 2002. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Securities 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 Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and said Act for a
statement of them. The Securities are secured obligations of Issuer limited in
aggregate principal amount to $49,500,000, except for Secondary Securities and
except as otherwise provided in the Indenture.
5. Redemption.
The Securities may be redeemed in accordance with Article III and Section
4.9 of the Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed at least 10 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
such Holder's registered address.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Securities called for redemption shall have
been deposited with
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Paying Agent for redemption on such Redemption Date, then, unless Issuer
defaults in the payment of such Redemption Price, the Securities called for
redemption will cease to bear interest and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
7. Limitation on Disposition of Assets.
Under certain circumstances Issuer is required to apply the net proceeds
from Permitted Asset Sales to the repayment of Indebtedness of Issuer.
8. Subordination.
The Securities are subordinated in right of payment, in the manner and to
the extent set forth in the Indenture and the Subordination Agreement (Senior),
to the prior payment in full of Senior Indebtedness of Issuer whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder, by accepting a Security, agrees to such
subordination and authorizes Trustee to give it effect.
9. Denominations; Transfer; Exchange.
The Securities are in registered form and without coupons. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption. No service
charge shall be made for any transfer, registration or exchange, but Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith, but not for any exchange pursuant to
Section 2.10 or 3.6 of the Indenture.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it
for all purposes.
11. Unclaimed Money.
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<PAGE>
INDENTURE
(15% Senior Subordinated)
If money for the payment of principal or interest remains unclaimed for
one year, Trustee and Paying Agents will pay the money back to Issuer at its
request. After that, all liability of Trustee and such Paying Agents with
respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If Issuer at any time deposits with Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Securities to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, Issuer will be discharged from certain
provisions of the Indenture and the Securities (including the financial
covenants, but excluding its obligation to pay the principal of and interest on
the Securities).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount, as the case may be, of the Securities then outstanding. Without notice
to or consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities, comply with Article Five of the Indenture or
comply with any requirements of the SEC in connection with the qualification of
the Indenture under the TIA, or make any other change that does not adversely
affect the rights of any Holder of a Security.
14. Successors.
When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, Trustee or the Holders of
at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable in the manner, at the time and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. Trustee is
not obligated to enforce the Indenture or the Securities unless it has
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<PAGE>
INDENTURE
(15% Senior Subordinated)
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct Trustee in its exercise of
any trust or power. Trustee may withhold from Holders of Securities notice of
any continuing Default or Event of Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
16. Trustee Dealings with Issuer.
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with Issuer,
its Subsidiaries or their respective Affiliates as if it were not Trustee.
17. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
Issuer shall have any liability for any obligation of Issuer under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication.
This Security shall not be valid until Trustee or authenticating agent
manually signs the certificate of authentication on this Security.
19. Governing Law.
The Laws of the State of New York shall govern this Security and the
Indenture.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
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).
21. CUSIP Numbers.
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<PAGE>
INDENTURE
(15% Senior Subordinated)
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, Issuer will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Indenture.
Each Holder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
Issuer will furnish to any Holder of a Security upon written request and
without charge a copy of the Indenture. Requests may be made to:
John Flanagan
Chief Financial Officer
Scott Cable Communications, Inc.
Four Landmark Square, Suite 302
Stamford, Connecticut 06901
23. Certain Information Obligations.
To the extent permitted by applicable law or regulation, whether or not
Issuer is subject to the requirements of Section 13 or 15(d) of the Exchange
Act, Issuer shall file with the SEC all quarterly and annual reports and such
other information, documents or other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) required to
be filed pursuant to such provisions of the Exchange Act. Issuer shall file with
Trustee copies of the quarterly and annual reports and 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) that it is required to file
with the SEC pursuant to the Indenture. At any time when Issuer is not permitted
by applicable law or regulations to file the aforementioned reports, Issuer
shall furnish Trustee and the Holders with the information that Issuer would
have had to provide to the SEC if Issuer had been subject to Section 13 or 15(d)
of the Exchange Act.
24. Issuer Indebtedness.
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<PAGE>
INDENTURE
(15% Senior Subordinated)
Each Holder acknowledges that Issuer is the sole obligor of the Securities
and no Subsidiary of Issuer is a co-obligor or a guarantor of the Securities.
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<PAGE>
INDENTURE
(15% Senior Subordinated)
{FORM OF ASSIGNMENT}
I or we assign this Security to
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other
identifying number of assignee
_________________________________________
and irrevocably appoint _______________________ agent to transfer this Security
on the books of Issuer. The agent may substitute another to act for him.
Dated: Signed:
_________________________________________________________________
(Sign exactly as your name appears on the front of this Security)
Signature Guarantee: ____________________________________________
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